BRIJLALA PRASAD SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) These five appeals are directed against the judgment dated 28-11-1997, of the Patna High Court passed in Criminal Appeal No. 459 of 1996 and Death Reference No. 5 of 1996. All the accused-appellants are police officials. All of them were convicted under Section 302/34, IPC and were directed to be hanged till they are dead by the learned Additional Sessions Judge, Gaya. Accused-appellant Dudh Nath Ram, in addition, was convicted under Section 201, IPC but no separate sentence was awarded. The High Court, on appeal, being preferred by the accused persons and reference being made for confirmation of death sentence under Section 366 of the Criminal Procedure Code affirmed the conviction of all the accused-appellants under Section 302/34, but on the question of sentence while the High Court affirmed the death sentence awarded against Dudh Nath Ram-appellant in Crl. Appeal No. 218 of 1998, Brijlala Prasad Sinha-appellant in Crl. Appeal No. 149 of 1998, and Victor Fedeles-appellant in Crl. Appeal No. 279 of 1998, commuted the death sentence as against accused Dinesh Singh, Deo Narain Ram, Jaikaran Yadav and sentenced them to undergo imprisonment for life, who are the appellants in Criminal Appeals Nos. 280-82 of 1998. The main ground for giving sentence of imprisonment for life as against the aforesaid three appellants is that they were merely the Constables and obeyed the commands of their superior officers and, as such, their case would not come within the test laid down by this Court to bring it as a rarest of rare case.

(2.) Broadly stated the prosecution case sought to be established through different witnesses is that accused Dudh Nath Ram was the Station House Officer of Barachatti Police Station in the State of Bihar. On the early morning of 5th of December, 1993 while Dudh Nath was taking tea Jaikaran informed that a Maruti Van has been speeding up with criminals and there has been indiscriminate firing from the said Maruti Vehicle. On getting this information the accused Police Officials immediately left the Police Station to chase the Maruti Van. The Maruti Van, however, was forced to stop on account of a traffic jam. The chasing police officials came near the Maruti Van and started firing at the Van indiscriminately in consequence of which 3 persons from amongst the occupants of the Maruti Van were killed and their dead bodies were then removed in the Police Jeep to the Police Station. Dudh Nath then made entry in the Station Diary stating therein that as the occupants of the Maruti Van started firing at the police personnel, the police personnel resorted to firing and in course of the occurrence 3 persons were found dead. It may be stated at this stage that prosecution tried to establish a case that the accused police officers after chasing the Maruti Van and finding the Van to be immobile on account of traffic jam surrounded the said Van and dragged Rajesh and Khedan from the vehicle and demanded a sum of Rs. 1 lakh, but when Rajesh could not accede to the request then he and Khedan were shot dead from the close range and the driver who was sitting on the driving seat was also gunned down. This part of the prosecution case, however, could not be established as none of the prosecution witnesses unfolded this part of the prosecution case. It may be further stated that a written report was submitted to the Superintendent of Police, Gaya on 9-12-1993, alleging therein that the police officials have committed (sic) murder of three persons as their demand of one lakh of rupees could not be fulfilled and on the basis of the said report Barachatti Case No. 148/93 was registered and the investigation of the said case was taken up by the CID Patna under Government Order and it is on completion of the investigation of the said case charge-sheet was submitted against the accused persons and on being committed to the Court of Session the accused persons stood their trial. The accused persons pleaded not guilty and according to them a false case has been foisted. The prosecution examined as many as 65 witnesses and exhibited a large number of documents. The prosecution witnesses who were supposed to unfold the manner in which the incident took place at 71 Mile Post on G. T. Road, namely, PWs 2, 4, 5, 9, 10, 11, 12, 17, 18, 20, 22, 35, 40, 52, 53, 54, 56, 57, 60 and 61 all became hostile and were cross-examined by the prosecution. Similarly, PWs 13, 15, 16, 21, 30, 46, 47 and 49 were also tendered by the prosecution, cross-examined and consequently their evidence could not be pressed into service in establishing the charge against the accused persons. PWs 6, 7, 8, 9, 14, 19, 33, 34, 38, 39, 50, 51, 58, 59, 62 and 64 are the police personnel examined in this case. PWs 24 and 55 are the formal witnesses to the seizure on the seizure list. There is no dispute that on the date of occurrence of 5-12-1993 at 71 Mile Post at about 7.30 a.m. 3 persons were killed. But in the absence of any direct testimony as to the manner in which they were killed the prosecution case hinges upon the circumstantial evidence. The learned Sessions Judge relying upon the evidence of PWs 63 and 65 came to hold that deceased Rajesh Dhawan along with Khedan Yadav and Vinay Kumar Mishra proceeded from Ranchi to Varanasi in the night of 3-12-1993. On the basis of the evidence of PWs 23, 41, 42, 44, 45 and 48 the learned Sessions Judge came to hold that Rajesh Dhawan had made purchases at Varanasi on 4-12-1993. The witnesses also further revealed that two other persons had accompanied Rajesh Dhawan. PW 65 established the fact that she had a telephonic talk with her husband from Varanasi on 4-12-1993 at 7.00 p.m. On the basis of the evidence of PWs 26, 27, 28, 29, 31 and 32 the learned Sessions Judge came to hold that the vehicle in which deceased Rajesh Dhawan was travelling with other persons developed certain defect and misfiring was noticed at 7.00 a.m. on 5-12-1993. On the basis of the evidence of PWs 7 and 8, who are the two constables present at Barachatti Police Station the learned Sessions Judge came to hold that early in the morning accused Jaikaran came and informed while Dudh Nath Ram and others were taking tea at the Police Station, that some dacoits are speeding up in a Maruti Van and while speeding up they are also firing from their revolver. Thus the aforesaid prosecution evidence clearly establishes the fact that five accused-appellants excepting accused Brijlala Prasad Sinha moved in a Police Jeep chasing the Maruti Van on being informed that the miscreants are speeding up in a Maruti Van and while so speeding up are indulging in firing from their weapons. The said PWs 7, 8 and 9 also stated in the Court that on 5-12-1993, the accused persons returned to Barachatti Police Station with three dead bodies and the damaged Maruti Van No. BR-14B/7407 and this fact is also corroborated by the evidence of PWs 58, 59 and PWs 27, 28, 29, 31 and 32. Accused Dudh Nath Ram was the Officer in-charge of Barachatti Police Station. He immediately after arriving at the Police Station got a case registered - Barachatti P. S. Case No. 146/93 stating therein that after chasing the Maruti Van near 71 Mile Post on G. T. Road when they found the van to be stationary they challenged the occupants of the Maruti Van and when the occupants of the said Van started firing at the Police personnel, the Police personnel retaliated by firing and in course of such firing 3 occupants of the Maruti Van were killed. This part of the case which could have been accepted as a defence version has not at all been established inasmuch as there is no iota of material to indicate that the occupants of the Maruti Van had at any point of time fired at the Police Officer nor there has been any mark of violence on the Police Van which unhesitatingly point out that false defence plea had been taken by the accused persons more particularly, accused Dudh Nath Ram who was the Officer In-charge of Barachatti Police Station on the relevant date of occurrence. It is significant to notice that though the Officer In-charge accused Dudh Nath Ram is supposed to have made a written report indicating the manner in which the 3 occupants of the Maruti Van were killed in an police encounter, but such written statement or the so called FIR did not reach the higher officers of the Police Department and in fact from the evidence of PWs 58 and 64 the learned Sessions Judge came to hold that until arrival of the higher officers of the State no FIR was lodged by accused Dudh Nath Ram. On examining different seizure lists made by Dudh Nath Ram on the relevant date of occurrence and the inherent inconsistencies in those seizure lists the learned Sessions Judge came to the conclusion that in order to suppress the truth and to cover up the truth the seizure list was prepared later on as an afterthought which indicates the guilty mind of the accused persons. In the aforesaid seizure list two country made pistols and two live cartridges were alleged to have been seized from the Maruti Van and those arms and ammunitions had been sent to Forensic Science Laboratory, Patna, for examination. The evidence of PW 34 and his reports Exhibits 16 and 16/1 clearly indicates that the cartridges found near the dead bodies of the deceased persons could not be fired from the country made pistols seized near the dead bodies and those pistols were defective. The report also further revealed that the said pistols had never been used. The aforesaid evidence clearly belies the defence theory that the occupants of the Maruti Van were speeding up by firing from their arms on the relevant date. The dead bodies of the 3 occupants of the Maruti Van were sent to the Gaya Hospital for post-mortem examination and doctor PW1 conducted the autopsy on the dead bodies of the said 3 persons. The post-mortem reports are Exhibits 1, 1/1 and 1/2. The evidence of PW 1 clearly establishes the fact that the appearance of blackening of margins on the wounds on the bodies of the deceased persons is suggestive of the fact that the fire-arm has been used approximately within 18 inch. The learned Sessions Judge, therefore, came to the conclusion that the deceased persons had been shot at from a very close range. The learned Sessions Judge also relied upon Exhibits 13/22, 13/23 and 13/24 which happened to be the photographs of the deceased persons and on that basis read with the evidence of doctor PW 1 came to hold that it cannot be the result of an encounter in which case there should have been some distance between both the parties but in the case in hand the distance between the parties was very close. The evidence of PWs 58 and 59 who had visited the place of occurrence on 6-12-1993 along with Dudh Nath Ram, Victor Fedeles and Brijlala Prasad establishes the fact that they did not find any mark of violence at a distance of 25 meters from the G. T. Road in the north side where it was alleged one dead body was found in the bush. They also did not find any mark of blood or mark of violence. The learned Sessions Judge analysed the evidence of PWs 58, 59 and 62 and then held that the story of encounter as alleged by the defence could not be believed. Exhibit 17/1 is the Register indicating the supply of fire-arms to the accused persons Dudh Nath Ram, Brijlala Prasad Sinha and Victor Fedeles. PW 38 examined by the prosecution indicated in his evidence that the rounds of cartridges which he had supplied to the aforesaid accused police officers (sic). Even the Register Exhibit 18 series corroborates the aforesaid factum of supply of cartridges. Later on the accused persons have surrendered their arms and ammunitions together with empty cartridges from which the learned Sessions Judge came to hold that the accused persons must be held to have utilised those cartridges in killing the 3 persons who were the occupants of Maruti Van on the relevant date of occurrence. The photograph of Maruti Van BR-14B/7407 in which the deceased persons were travelling clearly demonstrated the fact that the glasses of the said Van were broken and there were marks of firing on the Van. On the other hand, there was not an iota of damage to the vehicle in which the police officers were chasing and the learned Sessions Judge, therefore, came to the conclusion that the firing was made only by the accused persons and not from the side of the deceased persons. The learned Sessions Judge relying upon the evidence of PW 58 came to the conclusion that even though the Superintendent of Police, Gaya had ordered that Pw 58 would investigate into the case but Dudh Nath Ram never handed over the charge of investigation to him for quite some time. His evidence further indicated that when he searched for the Station Diary and asked about it from Munshi Shabir Ahmad, the Station Diary was not available at the Police Station and he was told that Dudh Nath Ram had taken away the same. Even the Station Diary was not available on 8-12-1993 when PW 58 wanted the same. Non-availability of the Station Diary at the Police Station and the reply of Munshi Shabir Ahmad to PW 58 that the same has been taken away by the accused Dudh Nath Ram was relied upon by the learned Sessions Judge as an additional link in the chain of circumstances to establish the case beyond reasonable doubt and in completing the chain. The learned Sessions Judge also relied upon the evasive answer which the accused persons had given in their examination under Section 313, Cr. P. C. and ultimately came to hold that these police officials have brutally fired at the stationary vehicle on account of which 3 occupants of the vehicle were killed. After noticing the law on the question of circumstantial evidence and on the circumstances established in the case by the prosecution witnesses the learned Sessions Judge came to hold that there is no hesitation in mind that the accused persons committed brutal murder of 3 innocent persons who had no criminal antecedents and rather they were civilised persons of the society. The learned Sessions Judge, therefore, held the accused persons guilty under Section 302/34, IPC. Though accused persons stood charged under Section 379/149 but the learned Sessions Judge came to hold that the said allegations of theft of Rs. 20,000/- had not been satisfactorily proved by the prosecution and as such he acquitted the accused persons of the said charge. So far as the charge under Section 120-B, IPC is concerned the learned Sessions Judge came to hold that the prosecution had failed to prove said charge beyond any reasonable doubt and acquitted them of this charge. So far as the charge under Section 201, IPC is concerned on an analysis of the prosecution evidence the learned Sessions Judge came to hold that the accused Dudh Nath Ram alone is guilty of the said offence and other accused persons cannot be held guilty of those charges and as such they were acquitted of the said charges. Coming to the question of sentence the learned Sessions Judge was of the opinion that 3 innocent civilians having been killed brutally in the hands of the accused persons who are police personnel and on whose shoulder the safety of the civilians lies and who are deemed to be the protector of the society and they have killed the 3 civilians without any provocation and resistance the case should be held to be one of the rarest of rare cases in which the accused persons deserve capital punishment and accordingly directed that each of them should be hanged till they are dead.

(3.) On appeal by the accused persons and a reference having been made for confirming the sentence of death under Section 366 of the Code of Criminal Procedure, the High Court by the impugned judgment came to the conclusion that the prosecution in this case has been handicapped in adducing the evidence regarding the actual manner of occurrence and also regarding the participation of individual accused in the commission of the crime for which they have been charged, tried and convicted. But on re-appreciating evidence establishing the circumstances, the High Court agreed with the conclusion of the learned trial Judge that the prosecution has been able to establish that the accused persons brutally murdered three occupants of the Maruti Van by resorting to fire from a close range. The High Court further came to the conclusion that it appears to be the absurd proposition and it indicates that there has been good deal of fabrication and manipulation for distorting and destroying the evidence in this case from the very beginning and it further appears that the police personnel in this case were very much conscious of this fact that innocent persons have been killed and in order to save their neck, they started making preparation of their defence at that very stage. On re-appreciation of the evidence the High Court agreeing with the learned Sessions Judge held that the stand of the defence that the occupants of Maruti Van BR-14B/7407 had opened fire at the police party necessitating opening of fire by the police party at the Maruti Van is wholly falsified. The further plea that two country-made pistols were recovered near the dead body of the deceased is also falsified from the report Ex. 16/1. Ultimately, the High Court came to the conclusion that the victims have been killed by the police in a show of fake encounter and it appears that the circumstances leading to this occurrence are most unfortunate for a civilised society and the police force is meant for protecting the law abiding citizens from anti-social elements and to come to the rescue of the citizens of onslaught from the mighty and influential persons but the role of police in this case appears to have been reversed. On a scrutiny of evidence, the High Court also came to the conclusion that it appears to be true that actually the killing had taken place in a deliberate manner because the deceased failed to fulfil their demand of money. The High Court ultimately came to the conclusion : "it is thus clear that all the six appellants in this case have participated in the commission of this ghastly and gruesome murder which was committed in a most indecent manner which was likely to shake the confidence of people in the law and order machinery of the State". Having come to the aforesaid conclusion and coming to the question of sentence the High Court was of the view that the sentence of death awarded against three accused, namely, Dudh Nath Ram, Brijlala Prasad Sinha and Victor Fideles does not require any interference but so far as the sentence of death awarded against the other three accused, namely, Dinesh Singh, Deo Narayan Ram and Jaikaran Yadav are concerned, they being subordinate policemen and were acting under the order and direction of their superiors, the extreme penalty of death sentence cannot be awarded to them, and therefore, it commuted their sentence to life imprisonment. Thus by the impugned judgment of the High Court in case of 3 of the accused persons, namely, Dudh Nath Ram, Brijlala Prasad Sinha and Victor Fedeles the sentence of death was confirmed and in case of other three accused persons the sentence of death was commuted to life imprisonment.