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2007 DIGILAW 1845 (PAT)

Shankar Choudhary v. State Of Bihar

2007-12-03

DHARNIDHAR JHA, SHIVA KIRTI SINGH

body2007
Judgment Shiva Kirti Singh and Dharnidhar Jha JJ. 1. All the 14 Appellants have preferred this appeal against the Judgment and Order dated, 1.07.2002 passed by the learned Additional Sessions Judge, (F.T.C. No. 4), Kaimur at Bhabhua in Sessions Trial No. 358/80 of 1990/2002, whereby, all the Appellants were convicted for the offences under Ss. 364/34, 302/34, 201 of the Indian Penal Code and awarded ten years, life imprisonment and seven years rigorous imprisonment respectively for each of those charges. They were further convicted u/s. 27 of the Arms Act but no separate sentence was awarded on that count. 2. An affidavit has been filed to show that Appellant No. 1 Shanakar Choudhary died on 13.06.2007 in Sub-divisional Hospital, Buxar, and in support of such fact a copy of the death certificate has also been brought on record. In that view of the matter, this appeal will be treated to have abated in respect of Appellant No. 1 Shankar Choudhary. 3. The prosecution case as appearing from fardbeyan of (RW. 6) Mukti Narain Rai is to the effect that on 9.08.1989 he along with Rajendra Prasad Rai (P.W. 4) had gone from his village Banke Bahuara to Nuaon Bazar in the day time and there they met his uncle Uday Narain Rai (the victim) who was returning from Bhabhua after attending a Court case. They started for the village and at about 6.30 in the evening while they were still west of their village, near the boring of Bachcha Rai alias Narvadeshwar Rai in a field near water channel going towards Chandesh, three persons who were sitting on the bank of the canal suddenly got up and captured Udai Narain Rai. The informant could identify two of them as Shyamraj Choudhary (Appellant No. 12) and Banshidhar Choudhary (Appellant No. 7). 15-20 persons came out from a hut near the boring of Narvadeshwar Rai armed with rifle and gun and out of them Deoraj Choudhary (Appellant No. 8) exhorted others to kill the entire family. In the meantime, the other accused persons carried away the victim and the informant and his companion managed to run away on hearing the threat of assault. While fleeing they raised hulla and came for their out house (Dera). In the meantime, the other accused persons carried away the victim and the informant and his companion managed to run away on hearing the threat of assault. While fleeing they raised hulla and came for their out house (Dera). According to the informant the occurrence was witnessed by Rajendra Rai (P.W. 4) as well as by one Radha Rai and Narvadeshwar Rai (both were not examined during the trial). 4. The aforesaid fardbeyan was allegedly recorded by one Sub-Inspector of Police Arvind Kumar of Kuchhila Police Station on 10.08.1989 at 10 hours at village Banke Bahuara. That Police Officer has not been examined. The formal FIR is shown to have been lodged on 10.08.1989 at 4.30 A. M. and sent to the concerned Court of Additional Chief Judicial Magistrate, Bhabhua, on that date by a special messenger but it was seen by the Court on 12.08.1989. Initially, the offence was u/s. 364 of the Indian Penal Code to which Ss. 302 and 201 were added on 12.08.1989. 5. The further case of the prosecution is that in the night of 9/10.08.1989 the informant and his companion Rajendra Rai (P.W. 4) stayed in the Dera or Chawani situated at a distance of about 350 yards towards east from the place of occurrence. They could not give information of the occurrence to others and the Police out of tear and only (P.W. 3) Narendra Rai, a nephew of the victim, was given a heresay account of the occurrence at the Chhawani. It is further case of the prosecution that (P.W.2) Kailash Rai a brother of the victim, on getting heresay account of the occurrence in the morning of 10.08.1989 proceeded with one Sheoji Rai to search for the victim. In course of search at some point of time through someone he came to know that a dead body tied in clothes was seen floating in river Karmnasha near Dihri at Sayarghat under Rajpur Police Station, Camp Dihri, in the district of Bhojpur. According to P.W. 2 on such information he went to the aforesaid place and took out the dead body which was tied in a bundle and he identified the same to be the dead body of the victim. He informed the Police and his fardbeyan was recorded by A.S.I. of Police Subhash Ram on 11.08.1989 at 8.30 hours (Exh. 10). According to P.W. 2 on such information he went to the aforesaid place and took out the dead body which was tied in a bundle and he identified the same to be the dead body of the victim. He informed the Police and his fardbeyan was recorded by A.S.I. of Police Subhash Ram on 11.08.1989 at 8.30 hours (Exh. 10). After preparing inquest report, A.S.I. S. Ram sent the dead body for post-mortem examination to Sub-divisional Hospital, Buxar. In the meantime the Officer-in-charge of Kuchila Police Station, S.I. Ram Naresh Singh (P.W. 7) took up investigation of the case in his own hands on 10.08.1989 itself. On that date he claimed to have recorded further statement of the informant (P.w. 6) and inspected the place of occurrence from where the victim was allegedly kidnapped. On getting information about the recovery of a dead body he contacted Dihri out post under Rajpur Police Station and collected relevant materials. He also collected the postmortem report, recorded the statement of prosecution witnesses and after completing investigation submitted chargesheet against 14 named accused. After cognizance the case was committed to the Court of Sessions where charges were framed and the accused Appellants pleaded not guilty to the charges. Their defence is simply of false implication. After facing the trial they were convicted by the Judgment under appeal, as noticed earlier. 6. The prosecution in order to prove its case has examined altogether seven witnesses. P.W. 1 Vijay Kumar Verma is a formal witness who has proved the formal F.I.R. as Exh. 1. P.W.2 Kailash Rai is a brother of the victim. He is a heresay witness of the alleged kidnapping and claimed to have recovered the dead body from the river Karmnasha and identified the same. His fardbeyan, dated, 11.08.1989 (Exh. 10) has already been noticed. That document does not show that at the time of recovery and identification of the dead body the informant Mukti Narain Rai was present with that witness. In fact, had the informant been present and the particulars of the earlier case available, the Police at Dihri Camp of Rajpur Police Station would not have recorded another fardbeyan with a view to institute another case. P.W. 3 Narendra Rai is a nephew of the victim. He is only a heresay witness of the account allegedly given by the informant and P.W. 4. Rajendra Rai. P. W. 5 Dr. P.W. 3 Narendra Rai is a nephew of the victim. He is only a heresay witness of the account allegedly given by the informant and P.W. 4. Rajendra Rai. P. W. 5 Dr. Chunni Lal Prasad conducted the postmortem examination over the dead body whose both hands and legs as well as the head were severed and absent. He noticed that private parts had also been chopped off. The postmortem report has been proved as Exh. 4. It shows that post-mortem was conducted on 11.08.1989 at 3.30 P. M. and in the opinion of the Doctor the death had occurred two to three days earlier. The Doctor found no special mark of identification on the dead body. P. W. 7 Ram Naresh Singh is the Investigating Officer who has proved the fardbeyan as Exh. 7. Two sketch maps prepared by him of the place of occurrence and of a field where some blood spots were noticed and marks of violence were found have also been proved by him (Exhs. 8 and 8/1). He has proved the inquest report as Exh. 9 and fardbeyan of P.W. 2 as Exh. 10. As noticed earlier, P. W. 4 Rajendra Prasad Rai and P. W. 6 Mukti Narain Rai, the informant, are the only two witnesses who claim to be the eye witnesses of the part of occurrence of capturing and taking away the alleged victim. 7. On behalf of the Appellants two pronged arguments were advanced. It was first submitted that the entire occurrence based upon the account of P.Ws. 4 and 6 is fake and imaginary and fit to be disbelieved. According to learned Senior Counsels Shri Rana Pratap Singh and Shri Kanhaiya Prasad Singh appearing for two sets of Appellants, the presence of P.Ws. 4 and 6 at the alleged time of occurrence is highly doubtful and some other materials and circumstances were also pointed out for submitting that the prosecution has failed to prove any motive against as many as 14 persons belonging to two different villages and the delay in lodging of the fardbeyan and receipt of the F.I.R. in Court create doubt that the prosecution case has been lodged subsequently as an afterthought with a view to implicate the persons thought to be inimical, only on suspicion. On the basis of such submission it was argued that all the charges against the Appellants must fail. 8. On the basis of such submission it was argued that all the charges against the Appellants must fail. 8. The other limb of argument is that the trunk of a dead body recovered in this case did not bear any special mark of identification as is clear from the inquest report (Exh. 9) or the postmortem report (Exh. 4) and in the facts of the case the claim of P.Ws. 4 and 6 that they identified the trunk on the basis of certain special marks on the trunk must be disbelieved. Extending such argument further, it was submitted that in case the Court believes the allegation regarding kidnapping even then in absence of any reliable identification of the dead body (trunk) the charge u/s. 302 against the Appellants must be held as not proved. 9. So far as the second limb of argument noticed above is concerned, it is found that according to the Investigating Officer, P.W. 7, Ram Naresh Singh, further statement of the informant Mukti Narain Rai, RW. 6 was recorded on 11.08.1989 itself, i.e. before the recovery and identification of the dead body. In that view of the matter, there is merit in the submission that before the Police, the informant had not made any claim that there were special marks of identification on the dead body and that the informant had actually identified the dead body on the basis of such marks. It is further found that even in Exh. 10, the fardbeyan of other identifying witness, P.W. 2, Kailash Rai, there is no mention that the informant was available with this witness and had identified the dead body. In fact, according to P.W. 2, one Sheoji Rai was accompanying him at the relevant time when he took out the dead body (only the trunk) from a river and after untying the cloth found it to be the dead body of the victim. The said Sheoji Rai has not been examined in Court without indicating any reasons for his non-examination. Thus, it is found that only P.W. 2, a brother of the alleged victim has come forward to claim identification of the dead body. Even the Police Officer, A.S.I. Subhash Ram who recorded Exh. 10 has not been examined to lend support to the claim of P.W. 2 regarding identification of the dead body. It is also found that the inquest report, Exh. Even the Police Officer, A.S.I. Subhash Ram who recorded Exh. 10 has not been examined to lend support to the claim of P.W. 2 regarding identification of the dead body. It is also found that the inquest report, Exh. 9, the fardbeyan of P.W. 2, Exh. 10 and the postmortem report, Exh. 4 do not show that the dead body which was in fact, only the trunk of a dead man aged about 40 years without hands, legs and head bore any mark of identification. The age of the victim as given out by P.W. 6 in Court is 50 years. On account of aforesaid facts, this Court finds difficulty in accepting the claim of the prosecution that the dead body was actually that of the victim. However, we do not propose to linger on this point any further because other limb of the arguments goes to the root of the matter and hence, it will be better to first examine in detail the submission that the entire claim of P. Ws. 4 and 6 that they saw the alleged occurrence with their eyes is not free from doubt. 10. As noticed earlier, P.Ws. 4 and 6 are the only eye witnesses of the alleged occurrence. They are relations/agnates of the victim and not independent. According to the prosecution case, the victim had gone to Bhabhua on 6.08.1989 to attend to a Court case. On 9.08.1989, these two witnesses per chance went to Nuoan Bazar and by chance happened to meet the alleged victim Udai Narain Rai and then while coming back to the village the occurrence took place at about 6.30 P.M. It has been pointed out that in Court these witnesses have claimed that the accused persons decided to assault these witnesses also for which one of the accused gave Order and to save their lives these two witnesses ran away from the place of occurrence. None of the two witnesses has sustained any injuries although there were allegedly 14 accused persons variously armed with rifle and gun. Nobody in the neighbourhood has been examined to show that these two witnesses were actually seen running away or being chased. None of the two witnesses has sustained any injuries although there were allegedly 14 accused persons variously armed with rifle and gun. Nobody in the neighbourhood has been examined to show that these two witnesses were actually seen running away or being chased. The witnesses have claimed to have raised hulla but nobody has been examined to support that any hulla was heard at the relevant time and as a result of chase these two witnesses claimed to have taken shelter in their Chhawani situated at a distance of about 350 yards only from the place of occurrence. The direction given by these two witnesses, i.e., P.Ws. 4 and 6 in paragraphs 6 and 19 of their respective depositions show that they followed different directions but still reached the same destination and the only person to support their claim of having reached the Chhawani and stayed there for the whole night is P.W. 3, Narendra Rai, another nephew of the alleged victim. The prosecution case is that these witnesses raised hulla even at their Chhawani which is approximately at a distance of about 500-600 yards from the village to which the witnesses and the victim belonged. No person has been examined to support any hulla being raised at the Chhawani and surprisingly no information of the alleged occurrence was given to the family members like P.W. 2 and other villagers till the morning of 10.08.1989 when the fardbeyan was allegedly recorded at 10 A.M. at village Banke Bahuara. In Court P.W. 6 has claimed to have given his fardbeyan at the Chhawani itself. This contradicts the evidence of P.W. 2, that the informant had come to the village in the morning hours on 10.08.1989 where he disclosed the alleged occurrence to him and also to the Police when it arrived there. 11. Connected to the aforesaid contention is the issue of delay in lodging of the fardbeyan and delay in production of the FIR before the concerned Magistrate. Although the Police Station is said to be at a distance of about 16 K ms. from the place of occurrence but considering that RWs. 11. Connected to the aforesaid contention is the issue of delay in lodging of the fardbeyan and delay in production of the FIR before the concerned Magistrate. Although the Police Station is said to be at a distance of about 16 K ms. from the place of occurrence but considering that RWs. 4 and 6 were allegedly together and had not been injured or even attacked creates a strong suspicion as to why they did not seek help of their co-villagers and other family members present at the village situated at a distance of about 800 yards and did not report the matter to the Police immediately with a view to get the alleged victim recovered from the clutches of the kidnappers. It has come in evidence that there are many licensed firearms available in the village of the witnesses. It is also found that the F.I.R. said to have been recorded on 10.08.1989 was seen by the learned Additional Chief Judicial Magistrate on 12.08.1989 though it was apparently dispatched by a special messenger as noted in column 3 of the F.I.R. The combined effect of all the circumstances creates a doubt that the fardbeyan as well as the F.I.R. might not have been recorded at the time they were shown to have been recorded. It is to be noticed in this context that as many as five of the Appellants, i.e., Appellant Nos. 4, 7, 11, 13 and 14 are not named as accused in Exh.10 which is said to be the fardbeyan of P.W. 2 recorded on 11.08.1989 allegedly on the basis of account of occurrence heard by P.W. 2 from the informant, P.W. 6. The prosecution has given no explanation for not examining Radha Rai and Narvadeshwar Rai, two witnesses named in the F.I.R. All the aforesaid facts create suspicion and doubt regarding the veracity and correctness of the prosecution case. 12. Yet another argument was advanced on behalf of the Appellants that it has come in the evidence of P.W. 6 that there was a litigation pending in Court between the victim and the villagers of Banke Bahuara on the one side and the villagers of village Kamhari on the other due to irrigation dispute over channel coming out of the canal. It was submitted on behalf of the Appellants that it was alleged that this litigation was being looked after by the victim but no papers were filed by the prosecution to show the existence of any such litigation pending in any Court. Further, the deposition of P.W. 6, particularly in paragraph 14 was referred to for showing that two separate water channels were in existence for the purpose of irrigation facility to the villagers of Kamhari and with those channels the informant and his family members had no concern. On the basis of such evidence it was submitted that, there was no motive for the alleged occurrence as there could be no irrigation dispute between the villagers of Banke Bahuara and Kamhari who enjoyed separate channels for irrigation. It was highlighted in this context that some of the accused such as Appellants 7 to 14 are villagers of the informant and there could no reason for these Appellants to share any intention with villagers of Kamhari for committing the alleged occurrence. On consideration of the relevant materials the alleged motive as given out by the prosecution appears to be doubtful. 13. As a result of the aforesaid discussions and findings. We find no option but to hold that the prosecution evidence, particularly the eye witness account given by P.Ws. 4 and 6 who are not independent witnesses, is not sufficient and reliable to fasten the guilt upon the Appellants of kidnapping or killing the alleged victim. In the result, the appeal of the Appellants is allowed and they are acquitted of all the charges. 14. Since Appellant No. 2, namely, Sri Niwas Choudhary is on bail, hence, he is discharged from the liability of bail bonds. Appellant No. 1 Shankar Choudhary, as noticed earlier, is dead. So far Appellants, 3 to 14, namely Sri Kishun Choudhary, Ramawadan Choudhary, Nathuni Choudhary, Deomuni Choudhary, Banshidhar Choudhary, Deoraj Choudhary, Ramraj Choudhary, Rang Bahadur Choudhary, Ram Kumar Choudhary, Shyamraj Choudhary, Brijkeshwar Choudhary and Birendra Choudhary alias Dhirendra Choudhary are concerned, they are directed to be released from jail forthwith, if not wanted in any other case.