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2002 DIGILAW 1326 (PAT)

Bahadur Chaudhary v. State Of Bihar

2002-11-29

ANIL KUMAR SINHA, B.K.JHA

body2002
Judgment ANIL KUMAR SINHA and BAL KRISHNA JHA JJ. 1. Both these appeals were heard together as they arise out of the same judgment. These appeals are directed against the judgment and order of conviction and sentence passed by 6th Additional Sessions Judge, Sasaram, Rohtas in Sessions Trial No. 383 of 1996, whereby the appellant Ram Dular Choudhary has been convicted under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life. He has been further convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. Appellant Bahadur Chaudhary has been convicted under Sections 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and has been further convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. Both the appellants were convicted under Section 148 of the Indian Penal Code but no separate sentence was recorded against them. 2. The fardbey an of the informant (PW 5) was recorded by the S.I. Dinesh Kumar (PW 7) on 25.7.1995 at 9.30 a.m. and the prosecution story, as disclosed in fardbey an in short, is that on 25.7.1995 the informant along with Satyanarayan Choudhary (PW 4), Kaushalya Devi (PW 3), Sumitra Devi (PW 2), Ramuna Devi and Bechan Choudhary (PW 6) were gossiping near the flour mill of the deceased when the deceased Sheo Mandir Choudhary came from the house at about 7.00 p.m. and went towards north to ease himself. It is alleged that 20 to 22 persons being armed with gun and rifles were hiding themselves in the bamboo clumps and since the deceased noticed them, he ran away towards mill. The accused persons chased him from north and south and fired indiscriminately upon him but the deceased came to the mill premises and was trying to close the door of the mill but in the meantime the appellants Ram Dular Choudhary and Bahadur Choudhary who were armed with rifle and gun respectively came at the mill and pushed the door which was opened and both of them fired from their respective weapons. The shot fired by appellant Bahadur Choudhary hit at the door frame of the mill and the shot fired by appellant Ram Dular Choudhary hit on the chest of the deceased who died instantaneously. The shot fired by appellant Bahadur Choudhary hit at the door frame of the mill and the shot fired by appellant Ram Dular Choudhary hit on the chest of the deceased who died instantaneously. The other accused were also firing from their guns to scare away the villagers. The informant has named all the 20 accused whom he claimed to have identified. The motive for the alleged occurrence is previous land dispute going on between the parties. 3. On the basis of the fardbeyan a case under Sections 147, 148, 149 and 302 of the Indian Penal Code and 27 of the Arms Act was registered against all the 20 accused and the police after completing the investigation submitted charge-sheet against them and the case was committed to the Court of Sessions for trial. 4. All the 20 accused were charged under Sections 302/149 and 148 of the IPC read with Section 27 of the Arms Act and Ram Dular Choudhary was separately charged under Section 302 of the IPC. The trial Court acquitted the 18 accused and the appellants were convicted in the manner as stated above. 5. The case of the defence as would appear from the trend of the cross-examination and suggestions given to the witnesses is that the appellants have been falsely implicated due to previous enmity and, as a matter of fact, the deceased was a man of criminal antecedent who was murdered somewhere else much before the alleged time of occurrence and taking advantage of the situation the appellants and other accused were implicated by the informant. 6. In order to prove the charges the prosecution examined as many as 8 witnesses, including the doctor and the I.O. and a Court witness, namely, Jai Mangal Singh was also examined who brought the station diary of Badhahari Police Chouki and he proved the Sanha entry No. 253 dated 25.5.1995 which is in the writing of Dinesh Kumar (I.O.) (Ext. 9). It may be stated at the very out set that the prosecution has not examined any independent witness in support of its case. 9). It may be stated at the very out set that the prosecution has not examined any independent witness in support of its case. It is no doubt true that the prosecution will not fail in absence of the examination of independent witness as held by the Apex Court in the case of Appabhai and another V/s. The State of Gujarat reported in 1988 SC 696 provided the statements made by the witnesses inspire confidence to believe and appears to be trustworthy. 7. PW 1 Suresh Chaudhary has claimed to be the eye-witness to the alleged occurrence, he has deposed that appellant Ram Dular Choudhary fired upon Sheo Mandir Choudhary causing injury on his chest, whereas, appellant Bahadur Choudhary also fired from his gun which hit the door of the mill belonging to the informant. But, from the evidence of the I.O. it appears that he is not the actual eyewitness to the alleged occurrence. PW 7 Dinesh Kumar (I.O.) has stated in para 15 of his evidence that this witness (PW 1) had not claimed to be an eye-witness to the alleged occurrence rather he had stated before him that when the assailants fled away, he had gone to the place of occurrence. He had not disclosed the names of accused persons. Therefore, the evidence of PW 1 who claims to be an eye-witness to the alleged occurrence does not inspire confidence to believe. The trial Court has also rejected his evidence. 8. The statements of PW 2 Sumitra Devi and PW 3 Kaushalya Devi were jointly recorded by the I.O. Both of them claimed to be the eyewitnesses to the alleged occurrence and stated that they had identified the appellants as also the other accused and had named them while giving their statements to the I.O. When the attention of the I.O. was drawn to the statements made by them, PW 7 (I.O.) has stated that PW 2 had not disclosed the names of two appellants who had come at the mill and pushed the door. They had also not stated before the I.O. the name of the accused who had fired upon Sheo Mandir Choudhary. I.O. has further stated that witness Kaushalya Devi (PW 3) had also not stated the name of the accused. They had also not stated before the I.O. the name of the accused who had fired upon Sheo Mandir Choudhary. I.O. has further stated that witness Kaushalya Devi (PW 3) had also not stated the name of the accused. Therefore, it appears that PWs 2 and 3 who claimed to be the eye-witnesses to the alleged occurrence had not disclosed the names of the appellants or any other accused who allegedly participated in the occurrence. Therefore, their evidence that they had identified the appellants does not deserve to be relied upon. PW 3 who is wife of the deceased has stated that her husband slept in the mill premises in the night hours although the informant stated in his fardbeyan (Ext. 1 /2) that the deceased came from his house to mill premises and went away to attend the call of nature. 9. PW 4 Satya Narayan Choudhary is the brother of the deceased who has also claimed to be the eyewitness to the alleged occurrence and has stated that 10 accused chased his brother from the north and 10 accused chased him from the south and all of them were firing but his brother managed to flee away and entered into the mill and while he was closing the door of the mill, the appellants pushed the door and Ram Dular Choudhary fired upon his brother causing injury on his chest as a result of which his brother died instantaneously and shot fired by appellant Bahadur Choudhary hit on the door of the mill. He has also named remaining 18 accused who also fired from their respective arms but they have been acquitted by the trial Court. PW 4 is also a witness on tne fardbeyan and has proved his signature Ext. 1 and he also signed as witness on the inquest report. His signature has been marked as Ext. 2. The seizure list was prepared in his presence on which he put his signature as witness (Ext. 3) and he has also proved the signature of another seizure list witness (Ext. 3/1). He has also proved the seizure list Ext. 3/2 and the inquest report Ext. 2/2 and also the fardbeyan Ext. 1/2. He has stated that the I.O. had seized three empty cartridges of 12 bore which he seized in his presence and prepared the seizure list (Ext. 4) on which he has signed as a witness. 3/1). He has also proved the seizure list Ext. 3/2 and the inquest report Ext. 2/2 and also the fardbeyan Ext. 1/2. He has stated that the I.O. had seized three empty cartridges of 12 bore which he seized in his presence and prepared the seizure list (Ext. 4) on which he has signed as a witness. In cross-examination he has stated that the accused persons were firing from a distance of five to seven steps from the main door of the mill and they fired about 15 to 16 rounds and he had shown the mark of firing upon the tiles and door to the I.O. But, the I.O. has stated that he did not find any mark of firing on the tiles or on the doot plank. So, his statement is not supported by the objective finding of the I.O. 10. PW 5 Ashpati Choudhary (informant) and PW 6 Bochan Choudhary have supported the prosecution case claiming themselves to be eyewitnesses to the alleged occurrence. Both of them stated that appellants pushed the door and shot fired by Bahadur Choudhary hit on the door whereas the shot fired by Ram Dular Choudhary hit on the right side chest of the deceased who died instantaneously. The remaining accused were firing discriminately and they must have fired about 15 to 20 rounds. PW 5 has stated that he had filed a protest petition against the I.O. in the Court of C.J.M., Sasaram and has proved the protest petition Ext. 5. The prosecution has not produced any paper to show that order was passed by the C.J.M. on the protest petition filed by the informant. PW 5 has admitted in his cross-examination that his brother Sheo Mandir Choudhary is accused in the murder case of Sheo Pujan Rai and he had gone to jail in a case of Arms Act on the alleged recovery of country made pistol and cartridges from his house. He has also admitted about a case under Sections 364 and 302 of the IPC filed by accused Bahadur Choudhary against him, his brother Sheo Mandir Choudhary, Satya Narayan Choudhary, Ash Narayan Choudhary and Suresh Choudhary who are the witnesses of this case and has admitted that he went to jail in connection with that case which is pending in the Court of 7th Additional Sessions Judge. It would, therefore, appear from the evidence of PW 5 that the deceased was a man of criminal antecedent along with his brother including PW 6 Bechan Choudhary. PW 6 has stated that two months before the alleged occurrence PW 4 Satya Narayan Choudhary had purchased some land from the Gotia of Sheo Pujan Choudhary and according to the prosecution case due to that dispute the alleged occurrence took place. But, the prosecution has failed to bring on record any document to show that PW 4 Satya Narayan Choudhary had actually purchased any such land. PW 6 has admitted that his house is situated at a distance of about 80 yards from the mill towards east and he also admitted that he along with Satya Narayan Choudhary jointly cultivates the land. As regards the manner of occurrence PW 6 has stated that the assailants who were 20 in numbers were chasing the deceased from north and south from a distance of about 20 yards and all of them were firing upon the deceased but no injury was caused to the deceased although 15 to 20 rounds were fired. He has further stated that while running towards south the deceased had crossed ten accused who were firing upon him. 11. The learned defence counsel strongly argued that the manner of occurrence as disclosed by PW 6 in his evidence completely belies the prosecution story because it is highly improbable that the deceased will not receive any injury although 10 persons were firing from the north and 10 persons were firing from the south and the deceased was in between. It is also not believable that the deceased crossed those 10 persons who had surrounded from the southern side and were firing upon him. So this circumstance goes to show that the occurrence did not take place in the manner as alleged in the fardbeyan. The learned APP however, tried to convince that it is possible that the assailants might not have resorted to firing because there was chance of hitting their own men but the evidence on record rules out this contention because the witnesses have clearly stated that the assailants were firing upon the deceased who was running towards south and he was surrounded from north and south. The submission advanced by the learned counsel for the appellants looks quite convincing. 12. The submission advanced by the learned counsel for the appellants looks quite convincing. 12. The defence counsel referring to the evidence of the doctor Arun Kumar (PW 8) who conducted the post-mortem examination on the dead-body of the deceased further submitted that the doctor has deposed that stomach cavity contained partially digested food. This fact has been noted down by PW 8 in his post-mortem report (Ext. 8). According to the case of the prosecution the alleged murder of the deceased was committed at about 7.30 a.m. and the PW 8 conducted the post-mortem examination at 3.40 p.m. and the time elapsed since death was between 12 to 24 hours. On this evidence it was urged that the medical evidence of the doctor completely falsifies the prosecution version because PW 4 has admitted in his evidence that normally the family members take their meal in between 9.00 p.m. to 10.00 p.m. and the food must have been digested within three to four hours. But the doctor found semi digested food in the abdominal cavity which would go to show that the death of the deceased had not taken place at 7.30 a.m., rather, he died much before at about 1.00 a.m. in the night and that is why the doctor found semi digested food and has written the age of injury between 12 to 24 hours at the time of his examination. The learned counsel for the appellants further submitted that the evidence on record goes to show that the deceased was a criminal and several cases of murder, kidnapping etc. were going on against him and he might have been killed by his enemies in the night hours itself and when the family members found him dead, a false and concocted case was instituted against the appellants and 18 other persons with whom the informant had dispute. The argument advanced by the defence counsel could not be controverted with any convincing reason by the counsel appearing for the State. 13. It was next contended that PW 8 has stated that the firing was made from the distance of some yards. He has given reason that if the firing is made from a close range the exit wound will be smaller and the inverted wound will be larger in the case of shot fired by rifles. It was, therefore, submitted that the medical evidence completely falsifies the case of prosecution. He has given reason that if the firing is made from a close range the exit wound will be smaller and the inverted wound will be larger in the case of shot fired by rifles. It was, therefore, submitted that the medical evidence completely falsifies the case of prosecution. The submission of the learned defence counsel that the deceased was a man of criminal antecedent has also been supported by the I.O. who has given the details of the cases in which the deceased was accused vide para 11 of his evidence. 14. Regard being had to all the facts and circumstances of the case and after carefully scrutnising the evidence, we are of the view that the prosecution has not proved the charges against the appellants beyond reasonable doubts. Accordingly, we hold the appellants not guilty to the charges levelled against them and acquit them. In the result, both the appeals are allowed. We set aside the judgment and order of conviction and sentence of the trial Court. Accordingly, the appellant, namely, Ram Dular Chaudhary of Criminal Appeal No. 174 of 1998 who is in jail custody is directed to be released forthwith, if not wanted in any other case and the appellant, namely, Bahadur Choudhary who is on bail is discharged from the liability of his bail bonds.