State Of Bihar v. Tek Narayan Chauhan — 1998 DIGILAW 872 (PAT)

Judgment R.N.Prasad, J. 1. The reference has been made for confirmation of death sentence awarded by 2nd Additional Sessions, Judge, Nawadah in case under Section 302 of the Indian Penal Code in Sessions Trial No. 245 of 1996/29 of 1996 whereas the appeal has been filed for setting aside the judgment and order of conviction and sentence passed in the abovemen-tioned case. 2. The case of the prosecution is that Narad Chauhan along with his injured wife, namely, Sakri Devi and injured baby aged about six months, namely, Kesri Kumari, went to the police station on 27.7.1996 and gave his statement at about 9.30 a.m. that at about 7 a.m. he was ploughing his field towards east of his house. On hearing alarm, he came to his house and found that his brother Tek Narayan Chauhan killed his mother, Budhia Devi, in the house of his elder brother, Tulsi Chauhan with Saif. His wife, namely, Sakri Devi, who was sitting at her door with her daughter aged about six months in her lap were also assaulted with Saif by Tek Narayan Chauhan causing bleeding injury. He and his villagers tried to catch him but he started running away. However, on chase he was caught and he was kept confined. During chase he threw the Saif. The motive of the occurrence was that they are four brothers and are separate but the well is only one. For draining out water of the well, there was altercation between the accused, informant and his brothers. 3. On the aforesaid statement first information report, Ext. 4, was drawn. The injured were sent to the hospital for treatment and investigation was taken up. The investigating officer went to the place of occurrence, prepared inquest report, Ext. 6, sent the dead body for postmortem, inspected the place of occurrence, seized blood stained earth, recovered Saif from the paddy field at the instance of the accused and prepared seizure list, recorded statement of the witnesses and on completion of investigation submitted charge-sheet against the accused, Tek Narayan Chauhan. On receipt of charge-sheet the case was committed to the Court of Session for trial. 4. During the trial, prosecution witnesses were examined. The statement of the accused was recorded under Section 313 of the Cr PC in which he admitted that at his instance Saif was recovered. On receipt of charge-sheet the case was committed to the Court of Session for trial. 4. During the trial, prosecution witnesses were examined. The statement of the accused was recorded under Section 313 of the Cr PC in which he admitted that at his instance Saif was recovered. The Trial Court convicted the appellant for the offence under Section 302 of the Indian Penal Code and awarded death sentence, as stated above. 5. The prosecution in support of its case examined eighteen witneses out of whom PW 2, PW 4, PW 5, PW 7, PW 8, PW 9, PW 13, PW 14 and PW 15 have been declared hostile. PW 3, PW 6 and PW 12 have been tendered. PW 10 is informant, PW 11 is injured and eye-witness to the occurrence, PW 1 is hearsay witness, PW 16 is doctor, who held post-mortem over the dead body, PW 17 is also doctor who treated Sakri Devi, PW 11 and her child and PW 18 is investigating Officer. 6. The informant is own brother of the appellant, Tek Narayan Chauhan, PW 1 is brother of the informant. PW 11 is wife of the informant. The deceased, Budhia Devi, is mother of PW 1, PW 10 and the appellant PW 11 is daughter-in-law of the deceased. Admittedly, PW 11 is only eye-witness to the occurrence. 7. Learned Counsel for the appellant contended that the conviction and sentence of the appellant cannot be sustained on the evidence of the sole eyewitness, PW 11. In this regard, it is pertinent to mention herein that evidence is weighed and not counted. The Legislature has not insisted on number of witnesses for proving any fact. Section 134 of the Evidence Act lays down that no particular number of witnesses shall, in any case, be required for proof of any fact. The Apex Court in the case of Vadivelu Thevar v. Chin- nish Survai, AIR 1957 SC 614 has categorized the evidence of the sole eye witness in three categories i.e. (i) wholly reliable (ii) wholly unreliable and (in) neither wholly reliable nor wholly unreliable. There is no difficulty in coming to a conclusion in case of first category i.e. if the evidence is wholly reliable and second category i.e. if the evidence is wholly unreliable. The difficulty is with respect to third category of the evidence. There is no difficulty in coming to a conclusion in case of first category i.e. if the evidence is wholly reliable and second category i.e. if the evidence is wholly unreliable. The difficulty is with respect to third category of the evidence. In case of third category of evidence judgment of conviction can be passed if such evidence is corroborated by other evidence and, accordingly, held that conviction can be maintained on the evidence of sole eye witness if his evidence is found to be wholly reliable. 8. In this backdrop we proceed to examine the evidence of sole eye-witness, PW 11. The witness stated in her evidence that she was on the door of her house with her six-month-old daughter in her lap. Her mother-in-law, Budhia Devi, was collecting wood. The appellant came with Bhala and gave Bhala blow on her chest due to which she fell down and died. He also assaulted her and her daughter with Saif causing bleeding injury. After assault, he ran away. She along with others came at the police station and she and her daughter were sent to the hospital. In cross-examination, she gave description of the place of occurrence and stated that she was present at the place of occurrence. She was at a distance of 6-7 steps from her mother-in-law. She was assaulted in the house and she fell down on the ground. Blood had fallen from the injury. She did not give blood stained cloth to the police. She denied the suggestion that her mother-in-law died in quarrel with her and also that she did not see the occurrence. The witness was cross-examined at length by the defence but she stood the test. Nothing cogent was elicited to discredit her evidence nor learned Counsel for the appellant pointed out such discrepancy to show that the evidence of the witness is not trustworthy. Thus, we find that evidence of the witnesses is wholly trustworthy. 9. PW 10 and PW 1 reached the place of occurrence on hearing about the occurrence. PW 10 is informant. He stated in his evidence that he was ploughing his field towards east of his house. He learnt that the appellant killed his mother. He went to the house and found his mother dead and injury on the person of his wife and daughter. He saw the appellant with Saif, who started running away on seeing him. He stated in his evidence that he was ploughing his field towards east of his house. He learnt that the appellant killed his mother. He went to the house and found his mother dead and injury on the person of his wife and daughter. He saw the appellant with Saif, who started running away on seeing him. He and others chased and caught him. He threw saif while running away. He was kept confined in the village. He along with his wifeand his daughter went to the police station where on his statement first information report was drawn. The injured were sent to the hospital for treatment. The investigating officer went to the place of occurrence and sent the dead body for post-mortem. In cross-examination, the witness stated that he was ploughing his field which was at a distance of one kilometre east from his house. He learnt there about the occurrence. Four days ago, there was altercation between him, his brother and the appellant. He denied the suggestion that he falsely implicated the appellant out of enmity. 10. PW 1 stated in his evidence that he was ploughing his field. He learnt about the occurrence from Wasir Chauhan that his mother has been killed by the appellant. He went to the place of occurrence and found his mother dead and bleeding injury on the person of the wife of the informant and his daughter. His daughter Kusum Devi stated that the appellant killed his mother and assaulted the wife of the informant and his daughter. In crossexamination, the witness stated that there was altercation a few days ago with the appellant of draining out water. He denied the suggestion that he deposed falsely. 11. From the discussions of the evidence of the witnesses, as stated above, it is evident that PW 10 and PV 1 reached the place of occurrence soon after the occurrence on hearing abou the occurrence and saw Budhia Dev dead and injury on the person of Sakr Devi and her daughter. P.W. 10 statec that he reached and saw the appellan with Saif, who started running away but he was chased and caught. While running away, the appellant threw the Saif. Therefore, the evidence of the witnesses corroborates the evidence of the sole eye-witness, PW 11. P.W. 10 statec that he reached and saw the appellan with Saif, who started running away but he was chased and caught. While running away, the appellant threw the Saif. Therefore, the evidence of the witnesses corroborates the evidence of the sole eye-witness, PW 11. Moreover, the appellant in his statement under Section 313 of the Cr PC admitted that Sai: was recovered at his instance by the police from the paddy field. 12. The oral evidence is also corroborated by other evidence such as the doctors evidence. PW 16 is the doctor, who held post-mortem over the dead body of Budhia Devi on 28.7.1997 al 10.30 a.m. He found three incised injuries on the person of the deceased. On dissection, he found lower job of the right lung punctured and found thoroxic cavity full of blood and blood clots. He opined that death was due to shock and haemorrhage due to the injury on the person of the deceased. The injury was Caused by sharp cutting and pointed weapon like Saif. The time elapsed since death was between 6 to 36 hours, which fits in with the prosecution case. PW 17 treated PW 11 and her daughter. He found cut injury on the person of PW 11 and also on the person of her daughter. The doctor stated in cross-examination that injury on the person of PW 11 was simple in nature but injury on the person of her daughter was dangerous to life. Thus, the doctors evidence supports the prosecution case with regard to use of weapon and time of occurrence. 13. PW 8 is investigating officer. He stated that he recorded the statement of PW 10 at the police station and drew first information report. He sent the injured to the hospital for treatment. He went to the place of occurrence and prepared inquest report of the dead body. He found blood at the place of occurrence, seized bloodstained earth and prepared seizure list. He arrested the accused, recovered Saif from the paddy field at the instance of the appellant and recorded statement of the witnesses. He inspected the place of occurrence. The witness also stated that hostile witnesses had supported the prosecution case as eye-witness before him. The witness was cross-examined but nothing cogent could be elicited to discredit his evidence. He arrested the accused, recovered Saif from the paddy field at the instance of the appellant and recorded statement of the witnesses. He inspected the place of occurrence. The witness also stated that hostile witnesses had supported the prosecution case as eye-witness before him. The witness was cross-examined but nothing cogent could be elicited to discredit his evidence. Thus, it is evident that the place of occurrence has fully been established in this case by the evidence of the prosecution witnesses. Moreover, place of occurrence is not in dispute. 14. Learned Counsel for the appellant, however, pointed out that PW 11, the sole eye-witness, has stated in her evidence that the appellant came with Bhala and assaulted with Bhala and as such the allegation in the first information report that the appellant assaulted with Saif is falsified. In this regard, it would not be out of place to mention herein that Saif and Bhala are fitted with stick. Bhala is a pointed weapon and its both edges and sharp. Saif is some longer weapon than Saif. It is also a pointed weapon and its both edges are sharp. Therefore, both can cause inside wound as well as penetrated wound. Therefore, in such a situation, nomenclature would not be relevant to discredit the evidence of the witnesses. Besides, such discrepancy would not affect the prosecution case in any manner. 15. Thus, on consideration of the evidence of the eye-witness, it is evident that the prosecution has succeeded in establishing the case against the appellant. 16. Learned Counsel for the appellant, however, contended that the Trial Court has committed error in awarding death sentence as no cogent special reason has been assigned for awarding death sentence. In this regard, it is pertinent to mention herein that imprisonment for life in a murder case in a rule and capital sentence is exception. Furthermore, capital sentence is to be awarded in rarest of the rare cases. Section 354 (3) of the Cr PC says that cogent reason has to be assigned for awarding death sentence. In this regard, it is pertinent to mention herein that imprisonment for life in a murder case in a rule and capital sentence is exception. Furthermore, capital sentence is to be awarded in rarest of the rare cases. Section 354 (3) of the Cr PC says that cogent reason has to be assigned for awarding death sentence. The reason assigned by the Trial Court does not appear to be very cogent for awarding death sentence and as such the conviction of the appellant under Section 302 of the Indian Penal Code is affirmed but capital sentence awarded by the Trial Court is hereby set aside and in its place the appellant is sentenced to undergo imprisonment life. 17. The reference is, thus, disposed of and the appeal is dismissed with modification, as indicated above.