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2006 DIGILAW 1097 (PAT)

Shivnath Choudhary v. State Of Bihar

2006-11-21

CHANDRAMAULI KR.PRASAD, JAYANANDAN SINGH

body2006
Judgment JAYANANDAN SINGH, J. 1. Sole appellant, being aggrieved by his conviction under Sec. 302 of the Indian Penal Code and sentence of imprisonment of life passed by the Vlth Additional Sessions Judge, Patna in Sessions Trial No. 1254 of 1998 has preferred this appeal. 2. Prosecution story, according to the fard beyan given by P.W. 4 Sanjay Choudhary before the Sub-Inspector of Police, Dhanarua Police Station on 1.4.1998 at 9.30 P.M. is that on the same day at about 6 P.M. while he hand his father Hardeo Choudhary (deceased) were sitting in the Dalan of Suresh Choudhary in front of his house, his father asked him to go to his residence to light lamp. According to the informant, while he was proceeding for that purpose, appellant Sheonath Choudhary came with a sickle and told his father that he wanted to cut his neck, whereupon his father answered that if he had such an intention he could do that. At this, appellant Sheonath Choudhary slit the neck of his father and he started tossing. According to the informant, he came running there and wanted to take his father to the hospital, but he died. He had also stated that appellant fled away from the place of occurrence. 3. On the basis of the aforesaid information, Dhanarua P.S. Case No. 53 of 1998 was registered at 11.55 P.M. on 1.4.1998 under Sec. 302 of the Indian Penal Code against the appellant only. However, during the course of investigation another accused, namely, Jailal Choudhary was found to be involved in the crime and, accordingly, police submitted charge sheet against the appellant and the said Jailal Choudhary. The learned Magistrate took cognizance of the offence and ultimately the appellant and said Jailal Choudhary were committed to the court of Sessions to face the trial. Appellant was charged for committing the offence of murder by intentionally causing the death of Hardeo Choudhary by cutting his neck with Fasuli (Siokle) 4. Appellant denied to have committed the offence and claimed to be tried. From the trend of the cross-examination, his defence seems to be of false implication. 5. Prosecution in support of its case had altogether examined six witnesses. P.W. 1 Sharda Devi, RW. 2 Suresh Choudhary and informant RW. 4 Sanjay Choudhary claim to be the eye-witnesses to the occurrence. Whereas RW. From the trend of the cross-examination, his defence seems to be of false implication. 5. Prosecution in support of its case had altogether examined six witnesses. P.W. 1 Sharda Devi, RW. 2 Suresh Choudhary and informant RW. 4 Sanjay Choudhary claim to be the eye-witnesses to the occurrence. Whereas RW. 3 Timaria Devi had arrived at the place of occurrence after the incident. RW. 5 Dr. Arun Kumar Singh is an Assistant Professor, who conducted autopsy on the dead body of the deceased. RW. 6 Harish Chandra Ojha is the Sub-Inspector of Police and the Investigating Officer of the case. 6. P.W. 1 Sharda Devi is the wife of the nephew of the deceased and she has stated in her evidence that the house of the deceased Hardeo Choudhary is situated 11 kathas east to her house and while the deceased was sitting on his Darwaja appellant Sheonath Choudhary came and slit his neck. In the cross-examination she had denied to have said to the Investigating Officer that she arrived at the place of occurrence on hulla and found the deceased neck cut. In the cross-examination she had specifically stated that nobody turned up when the police came at the village at 1 P.M. 7. P.W. 2 Suresh Choudhary is the husband of P.W. 1 Sharda Devi and is the nephew of the deceased. According to his evidence he was talking at his Dalan where Sanjay Choudhary (RW. 4) and Hardeo Choudhary (deceased) were sitting. According to him, appellant and Jailal Choudhary came and appellant slit the neck of Hardeo Choudhary causing his death. According to his evidence, appellant was arrested and from whom the weapon of crime i.e. Fasuli was recovered which was seized. He is a witness to the seizure of the sickle and proved his signature (Ext-1). He is also a witness to the Inquest report prepared by the police. In the cross- examination he had stated that his statement was recorded at 10 P.M. in the night of the occurrence and had denied the suggestion that P.W. 1 had gone inside the house for lighting the lamp. He had further stated that the occurrence had taken so quickly that nobody attempted to save the deceased. 8. In the cross- examination he had stated that his statement was recorded at 10 P.M. in the night of the occurrence and had denied the suggestion that P.W. 1 had gone inside the house for lighting the lamp. He had further stated that the occurrence had taken so quickly that nobody attempted to save the deceased. 8. P.W.3 Timariya Devi is the wife of the younger brother of the deceased and according to her while she was at her house, on hearing alarm she came out and found the neck of the deceased cut. According to her, where the dead body was found she saw RW. 4 Sanjay Choudhary and the other accused, namely, Sheonath Choudhary armed with Fasuli and threatening Sanjay Choudhary that in case he raises the alarm he will also be killed. He had further deposed that the appellant was apprehended by the police in the night of the occurrence itself. However, in paragraph 9 of the cross-examination she had stated that P.W. 4 Sanjay Choudhary reached at the place of occurrence after her arrival and in paragraph 11 thereof she had also stated that male members of the family had gone to another village for harvesting. 9. P.W. 4 Sanjay Choudhary is the son of the deceased and according to him while he was at the Darwaja of Suresh Choudhary alongwith his father, his father asked him to go to the house for lighting the lamp, but before he could go appellant armed with Fasuli alongwith the acquitted accused came there and cut the neck of his father. According to this witness, after the neck of his father was cut he covered him and his cloth got soaked with blood. He had stated that no dispute exists between his family and the appellant Sheonath Choudhary. He went to the extent of saying that there was no reason for causing the murder of his father. In the cross-examination he had stated that after Sheonath Choudhary was arrested, the statement of the informant was recorded and in fact he had gone to the Police Station, where he gave the information and then police came alongwith him. He had denied the suggestion that the deceased was killed by unknown persons. 10. P.W.5 Dr. Arun Kumar Singh, at the relevant time, was posted as Assistant Professor in the department of Forensic Medicine in the Patna Medical College & Hospital. He had denied the suggestion that the deceased was killed by unknown persons. 10. P.W.5 Dr. Arun Kumar Singh, at the relevant time, was posted as Assistant Professor in the department of Forensic Medicine in the Patna Medical College & Hospital. He had conducted the autopsy on 2.4.1998 at 11.15 A.M. on the dead body of Hardeo Choudhary and found the following injuries : One incised wound of 7" x 1 1/2" on front of neck 3/4" from the left ear and 1 3/4" from right ear and 2" above from sternal notch with cut injury of trachea oesophaqus and major vessels and nerves of neck. 11. According to the doctor, the death had occasioned on account of haemorrhage and shock on account of the injury found on the person of the deceased which might have been caused by Fasuli and the death had occurred 12 to 14 hours from the time of the postmortem examination. 12. P.W. 6 Harish Chandra Ojha, at the relevant time, was a Sub-Inspector of Police, posted at Dhanarua Police Station and according to him a wireless message was received that some Choudhary had killed another person and the said message was entered in the Station Diary. He had further stated that the Officer-lncharge of the Police Station, namely, Mundrika Prasad alongwith other police personnel had proceeded to the village, where Mundrika Prasad recorded the statement of the informant and he had proved the first information report. He had also stated that the appellant Sheonath Choudhary was arrested by the police from the village itself alongwith the weapon of crime and he has proved the seizure list. He had stated that huge quantity of blood was found at the place of occurrence but the same was not seized. He had admitted that the area in question is terrorist affected area. He had admitted that the weapon of crime was not sent for forensic examination. 13. The learned Judge on appraisal of evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and, accordingly, convicted the appellant as above, However, the participation of the co-accused Jailal Choudhary was found to be doubtful and he has been acquitted of the charge. 14. Mr. 13. The learned Judge on appraisal of evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and, accordingly, convicted the appellant as above, However, the participation of the co-accused Jailal Choudhary was found to be doubtful and he has been acquitted of the charge. 14. Mr. Nishant Prakash, appearing as Amicus Curiae submits that all witnesses are related to the deceased and hence their evidence deserves to be appreciated with care and caution. He points out that P.W.1 Sharda Devi is the wife of P.W. 2 Suresh choudhary and the later is the nephew of the deceased. He further points out that P.W. 3 Timariya Devi is the wife of the deceaseds brother and P.W. 4 Sanjay Choudhary is the son of the deceased. He points out that the place of occurrence is surrounded by the house of other villagers but none have come to support the case of the prosecution and in the background of the aforesaid fact, the evidence of eye-witnesses is fit to be rejected. In support of his submission, he has placed reliance on a Division Bench judgment of this Court in the case of Indradeo Rai and others etc. Vs. State of Bihar [1992 Criminal Law Journal 4005] and our attention has been drawn to the following passage from paragraph 17 of the said judgment, which reads as follows : "P.W. 5 Gajadhar Rai is son of P.W. 7 Tej Narain Rai who is brother of the deceased.They are interested witnesses. They are tutored witnesses. No doubt it is settled that relationship by itself is no ground to discard and disbelieve the evidence of a witness, if it is otherwise found to be consistent and reliable. The evidence of P.Ws. 5 and 7 is not corroborated by any reliable evidence. Therefore, no reliance can be placed on the testimony of P.Ws. 5 and 7." 15. He points out that P.W. 1 Sharda Devi claims to be an eye-witness to the occurrence, but during the course of investigation she had not made any such claim. In fact during investigation she had stated to the Investigating Officer that she arrived at the place of occurrence on hulla and found the deceased neck cut. 5 and 7." 15. He points out that P.W. 1 Sharda Devi claims to be an eye-witness to the occurrence, but during the course of investigation she had not made any such claim. In fact during investigation she had stated to the Investigating Officer that she arrived at the place of occurrence on hulla and found the deceased neck cut. In this connection, learned Counsel has drawn our attention to the evidence of the Investigating Officer (P.W. 6) in paragraph 5 of his cross-examination where the Investigating Officer has clearly stated that Sharda Devi had stated that when she arrived at the place of occurrence deceaseds neck was cut and he was dead and appellant Sheonath Choudhary was standing by his side with Fasuliin his hand. He has specifically stated that P.W. 1 Sharda Devi did not say to him that he had seen the deceased being assaulted. 16. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, appearing on behalf of the State, however, submits that the evidence of the eye-witnesses cannot be discarded only on the ground that they happen to be related to the deceased. 17. Having appreciated the rival submissions, we do not have any difficulty in accepting the broad submission of Mr. Prasad that the evidence of a witness cannot be discarded only on the ground of ralationship. However, the evidence of such a witness is to be appreciated with greater care and caution. Bearing in mind the aforesaid principle when we proceed to test the evidence of P.W. 1, we find that the claim made by her that she is an eye-witness to the occurrence is doubtful. The Investigating Officer had emphatically stated that Sharda Devi during the course of investigation did not claim to have seen the incident taking place. In such a situation the claim made by P.W. 1 Sharda Devi to be an eyewitness to the occurrence is not fit to be accepted. 18. Assailing the evidence of P.W. 2 Suresh Choudhary, Mr. Prakash submits that the name of this witness does not find place as a witness in the first information report and no other witness has stated about his presence at the time of occurrence. He points out that there is a vital contradiction in the evidence of this witness and P.W. 3 Timariya Devi and P.W. 4 Sanjay Choudhary. Prakash submits that the name of this witness does not find place as a witness in the first information report and no other witness has stated about his presence at the time of occurrence. He points out that there is a vital contradiction in the evidence of this witness and P.W. 3 Timariya Devi and P.W. 4 Sanjay Choudhary. He points out that according to P.W. 2 Suresh Choudhary nobody came at the place of occurrence whereas according to evidence of P.W. 3 Timariya Devi in paragraph 8 and that of P.W. 4 Sanjay Choudhary in paragraph 1 the villagers had collected. Mr. Prasad, however, contends that the contradiction and the infirmities points out above are of not such nature, that itself create doubt to the case of the prosecution. 19. Having considered the rival submissions, we are of the opnion that one isolated factum may not be decisive in appreciating the evidence of a witness, the cumulative effect of the infirmities have to be seen for appreciating the evidence of the witnesses. The infirmities which we have found in the present case which we intend to narrated later on, would clearly show that no implicit reliance can be placed in the evidence of P.W. 2 Suresh Choudhary. 20. P.W. 4 Sanjay Choudhary although claims to be an eye-witness to the occurrence but P.W. 3. Timariya Devi, who undisputedly had arrived at the place of occurrence after the incident, had emphatically stated that Sanjay Choudhary reached at the place of occurrence after her arrival. According to her, she is not an eye-witness to the occurrence and had gone to the place of occurrence after hulla and had found the deceased dead and his neck cut. In that view of the matter, the claim of Sanjay Choudhary to be an eye-witness to the occurrence is falsified by the evidence of P.W. 3 itself. According to the first information report, appellant Sheonath Choudhary sought permission of the deceased to cut his neck, but according to his evidence it was Jailal Choudhary who asked for that. Further according to the first information report, his father was tossing after sustaining the injuries and he wanted to take him to the hospital, but he died. However during trial no such evidence has come on record. According to P.W. 4. Further according to the first information report, his father was tossing after sustaining the injuries and he wanted to take him to the hospital, but he died. However during trial no such evidence has come on record. According to P.W. 4. Laldeo Choudhary had seen the occurrence whereas P.W. 3 Timariya Devi, who happens to be his wife, had stated in paragraph 11 of her evidence that Laldeo Choudhary in fact had gone to another village for harvesting. The infirmities which we have found in the evidence of P.W. 4 Sanjay Choudhary make his claim to be an eye-witness to the occurrence to be unreliable. 21. It is relevant here to state that P.W. 6 Harish Chandra Ojha had found blood-stains at the place of occurrence but blood-stained earth was neither seized nor sent for forensic examination. As rightly pointed out by Mr. Prakash that this is another infirmity in the case of the prosecution and for that purpose, he has referred to the decision of the Supreme Court in the case of Lakshmi Singh and others Vs. State of Bihar [1976 SCC (Cri) 671] and our attention has been drawn to paragraph 14 of the said judgment, which reads as follows : "To add to this another important circumstance is the omission on the part of the prosecution to send the bloodstained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assault. In almost the place of occurrence is invariably sent to the chemical Examiner and his report along with the earth is produced in the court, and yet this is one exceptional case where this procedure was departed from for reasons best known to the prosecution. This also, therefore, shows that the defence version may be true. It is well settled that it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the court to reject the prosecution version." 22. Mr. Prakash has also drawn our attention to the evidence of Investigating Officer about the alleged recovery of the weapon of crime from the appellant, but he points out that the same has not been produced. Mr. Prakash has also drawn our attention to the evidence of Investigating Officer about the alleged recovery of the weapon of crime from the appellant, but he points out that the same has not been produced. Further the weapon of crime has not been sent for forensic examination which treates doubt to the orosecution case, contends Mr. Prakash. Reliance has been placed on a decision of the Supreme Court in the case of State of M.P. Vs. Surpa [2003 SCC (Cri) 1221] and our attention has been drawn to paragraph 8 of the judgment which reads as follows : "In this state of evidence, coupled with the serious infirmity which we have pointed out of not sending the recovered lethal weapon and the bullet to an expert, we do not find it possible to say that the prosecution has established its case against the respondent beyond a reasonable doubt. The prosecution had come up with a positive case. It was obliged to prove the same. It has failed to do so. Under these circumstances, no fault can be found with the judgment of acquittal recorded by the High Court." 23. According to him, it is improbable that the appellant shall be with the weapon of crime to be arrested by the police alongwith it after long hours. He also points out that it is absolutely improbable that none of the witnesses or the victim himself would not resist the assault. He points out that excepting one injury on the neck no further injury has been found on the person of the deceased and further none of the witnesses had sustained any injury. Mr. Prasad, however, points out that the conduct of the appellant is not so natural that on that basis the entire case of the prosecution deserves to be thrown out. He points out that the appellant was carrying the weapon toward of attack from the villagers, otherwise it was natural that the assailant would had become the victim of mob frenzy. 24. We find substance in the submission of Mr. Prakash and the authorities relied on clearly support his submission. The Investigating Officer had stated about the presence of blood in huge quantity at the place of occurrence. True it is that the place of occurrence was trampling as pointed out by Mr. 24. We find substance in the submission of Mr. Prakash and the authorities relied on clearly support his submission. The Investigating Officer had stated about the presence of blood in huge quantity at the place of occurrence. True it is that the place of occurrence was trampling as pointed out by Mr. Prasad but had the trampling led to disappearance of the blood, one can conceive blood-stained earth being not found by the Investigating Officer. Here despite the trampling, blood in huge quantity was found by the Investigating Officer, but neither the blood-stained earth was seized nor sent for forensic examination. The weapon of crime although has been seized and from the seizure list it does not appear that it had blood stains. Not only this, it has not been sent for forensic examination. To us it looks improbable that none of the witnesses or the victim himself would not have resisted the assault. Had they resisted injuries ought to have been found on their person but no injury has been found on their person. It has to be borne in mind that P.W. 4 Sanjay Choudhary is none other than the son of the deceased and P.W. 1 and 2 are near relatives. It is expected from them to resist the assault. 25. As stated earlier according to the prosecution the occurrence had taken place at about 6.30 P.M., whereas the appellant was arrested with the weapon of crime at 11.10. P.M. The explanation put forth by Mr. Prasad that the appellant was carrying the weapon to word off the attack does not appeal to us as according to the prosecution itself the police had arrived at the village at 9.30 P.M. and the fard beyan of the informant was recorded. In fact the Inquest report was prepared at 9.45 P.M. and the appellant who is the resident of nearby house must have known the arrival of the police. His presence with the weapon of crime even thereafter for a long time does not seem probable to us. 26. The cumulative effect of the aforesaid infirmities lead us to conclude that the prosecution has not been able to bring home the charge beyond all reasonable doubt. His presence with the weapon of crime even thereafter for a long time does not seem probable to us. 26. The cumulative effect of the aforesaid infirmities lead us to conclude that the prosecution has not been able to bring home the charge beyond all reasonable doubt. We hasten to add that on isolated factum may not be sufficient to discard the case of the prosecution but the cumulative effect thereof surely creates doubt and, as such, the appellant deserves to be given the benefit of doubt and we grant it accordingly. 27. Before we part with the case, we record our sense of appreciation for able, focused and pointed submission made by Mr. Nishant Prakash, as Amicus Curiae. 28. In the result, the appeal is allowed, impugned judgment of conviction and sentence is set aside. Appellant is in jail, he be set at liberty forthwith unless required in any other case.