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2007 DIGILAW 465 (PAT)

Pawan Kumar Chourasia v. State Of Bihar

2007-03-01

SHIVA KIRTI SINGH, SUBASH CHANDRA JHA

body2007
Judgment 1. The sole appellant has been convicted for the charge under Sec.302 read with Sec.34 of the IPC and awarded RI for life on that count and also a fine of Rs. 5000.00 or in default to undergo further RI for two years. He has also been convicted of charge under Sec.201, IPC for which he has been awarded RI for three years and a fine of Rs. 1000.00 or in default further RI for one year. 2. From the materials on record and the deposition of witnesses it appears that Kasba PS Case No. 109/1989 was lodged on 20-6-1989 by PW-5 Lakhi Prasad Chourasia, father of one of the deceased in this case, Kamlesh Kumar Chourasia. According to prosecution case the aforesaid Kamlesh Chourasia aged about 15 years and another boy Bhulla Prasad Chourasia aged about 18 years, son of Hira Lal Chourasia (PW-9) became traceless on 2-6-1989 for which some information was given to the Police Station also later on. On 20-6-1989 at the instance of Lakhi Prasad Chourasia some villagers including PW-7. Md. Tamizuddin went to verify rumor that both the missing boys have been killed by accused, Pawan Kumar Chourasia (appellant) and some other persons. On interrogation at his house allegedly the appellant disclosed before the villagers that he, his brother Upendra Kumar Chourasia, Pankaj Chourasia, Pradeep Chourasia and Mithilesh Chourasia had strangulated the two deceased by using force of towel on their neck and thereafter the dead bodies had been buried in the field of Bhagirath situated at Nakkibari. According to the prosecution case all the persons and villagers present were taken to the place of burial by the appellant, Pawan Kumar Chourasia and at the place shown by him the dead bodies were recovered from under the ground. After the dead bodies were recovered PW-6 along with some others went to the Police Station where the fardbeyan was recorded on 20-6-1989 at 1700 hours. It appears that after investigation chargesheet was submitted leading to trial of this appellant, Pawan Kumar Chourasia and four others. They pleaded not guilty to the charges and were tried leading to conviction of the appellant by the impugned judgment and order. By the same judgment and order four others were acquitted of similar charges on account of lack of reliable evidence against them. In order to prove the charges the prosecution examined. 10 witnesses in total. They pleaded not guilty to the charges and were tried leading to conviction of the appellant by the impugned judgment and order. By the same judgment and order four others were acquitted of similar charges on account of lack of reliable evidence against them. In order to prove the charges the prosecution examined. 10 witnesses in total. PW-1, Radhey Shyam Mandal, PW-2, Jagdish Prasad Chaurasia, PW-3, Shobha Lal Mandal, PW-4, Kishan Lal Mandal, PW-5, Lakhi Prasad Chourasia (informant) and PW-6, Satya Narain Mandal have been declared hostile and have been cross-examined by the prosecution also. The witnesses on whom prosecution has placed full reliance are PW-7, Md. Tamizuddin. PW-8, Luchai Mandal who is uncle of one of the deceased, Bulla Prasad Chourasia and PW- 9, Hira Lal Chourasia who is father of the aforesaid deceased. PW-10, Dr. R. D. Raman has claimed to have held autopsy of the bodies of the two deceased and the postmortem reports of deceased, Kamlesh Kumar Chourasia and deceased. Bulla Prasad Chourasia have been proved and marked as Exhibits 2 and 2/1 respectively. 3. Exhibit-1 series are documentary evidence by way of signatures of witnesses on the FIR, seizure list as well as Inquest reports. 4. On behalf of the appellant it has been submitted that the prosecution case should not have been accepted as true when the informant PW-6 has turned hostile and chosen not to support the earliest version of the prosecution. The other submission is that conviction of the appellant is based only upon alleged extrajudicial confession made by him before villagers and no sanctity to such alleged confession should have been accorded when only PW-7, Md. Tamizuddin is named in the FIR as one of the witnesses of such extra judicial confession and there is no mention of the names of PW-8 and 9 in the fardbeyan. 5. The next submission is that on account of the decomposed state, it was not possible for the witnesses to identify the dead bodies recovered from the field and therefore the claim of the prosecution that the appellant is responsible for killing the two deceased should not have been accepted. 5. The next submission is that on account of the decomposed state, it was not possible for the witnesses to identify the dead bodies recovered from the field and therefore the claim of the prosecution that the appellant is responsible for killing the two deceased should not have been accepted. Lastly, it was submitted that in the fardbeyan there is an indication that the appellant had been assaulted by the villagers after the recovery of the dead bodies allegedly at his instance and this circumstance that indicates, in fact, there was no voluntary confession by the appellant rather he was subject to assault and torture. 6. There is no dispute that many witnesses including the informant have turned hostile but it is remarkable that they have admitted their signatures over important documents like fardbeyan, seizure list and inquest reports. It is well established in law that FIR is not a substantive piece of evidence and it can be used only to corroborate or contradict its maker. If the informant chooses not to support the prosecution case, that alone cannot be a ground for rejecting the prosecution case. In the present case PW- 7, Md. Tamizuddin is mentioned in the fardbeyan as one of the witnesses before whom the accused appellant made his confession that he with some others had killed the two deceased by using Gamchha (thin soft towel) for strangulation and. the dead bodies were concealed inside the ground in the field of Bhagirath situated at Nakkibari. PW-7 has fully supported the aforesaid prosecution claim that this appellant confessed his role in the killing of the deceased in presence of several villagers including PW-5 and after disclosing the details he also took the villagers to the field of Bhagirath and, in fact, initially he removed soil from the place concerned and when fowl smell started coming out, the digging work was taken over by Luchai Mandal (PW-8) and both the dead bodies were taken out. The dead bodies and the clothes were identified to be of the two missing boys. He also disclosed that there was land dispute between the parties from before. He has claimed that he went with the informant to the Police Station where "Beyan" of Lakkhi (PW-5) was recorded. This witness has identified and proved his signature on the FIR and the same has been marked as an Exhibit. 7. He also disclosed that there was land dispute between the parties from before. He has claimed that he went with the informant to the Police Station where "Beyan" of Lakkhi (PW-5) was recorded. This witness has identified and proved his signature on the FIR and the same has been marked as an Exhibit. 7. An attempt has been made by the defence to cross-examine the witness and force him to admit that he was having some enmity from before with a co-accused. Upendra who was allegedly having some dispute with one Hasan Saheb but the witness categorically answered the questions to the effect that there was no dispute between Hasan Saheb who was no more and accused. Upendra and this witness had no concern with the lands of Hasan Saheb. There is nothing in the cross-examination of this witness to affect his independence or reliability. 8. In respect of PWs-8 and 9 who are uncle and father of deceased, Bulla Prasad Chaurasia, the only adverse comment is that their names are not mentioned among the names of witnesses in the fardbeyan. That appears to be correct but only on that basis their evidence in Court cannot be rejected or disbelieved. Their evidence in Court appears to be reliable. Even, according to PW-7, part of the digging for recovery of the dead bodies was done by Luchai Mandal (PW-8). Hence their claim that they had also gone to the place from where the bodies were recovered at the instance of this appellant cannot be disbelieved. 9. In fact, a careful look at the cross-examination of the prosecution witnesses reveals that even PWs-1 and 5 besides PWs-7, 8 and 9 have not even been questioned that the identification of the dead body was not possible. Even the doctor who held postmortem examination and has prepared reports separately for the two dead bodies by name has not been suggested that it was not possible to identify the dead bodies even by near and dear ones. 10. Before considering the submission advanced on .behalf of the appellant it is necessary to note that the doctor, PW-10 has deposed on the basis of postmortem reports proved by him that he found faint marks on the right side of neck of deceased. Kamlesh Kumar Chourasia with fracture of second vertebra. On dissection of neck he found the underline muscle and tissues of bruised colour. Kamlesh Kumar Chourasia with fracture of second vertebra. On dissection of neck he found the underline muscle and tissues of bruised colour. Similarly in respect of deceased, Bulla Prasad Chourasia he found the faint mark on the front of right side neck and fracture of second cervical vertebra. The concerned muscle and tissues were found to be of brown colour. Death of both the deceased, in the opinion of the doctor was caused by strangulation of neck and fracture of bone as noticed above. Nothing has been elicited from this witness in cross-examination so as to discredit the testimony. 11. On a careful consideration of the evidence of PWs-7, 8, 9 and of the doctor, (PW-10) this Court finds that the prosecution has proved the extra judicial confession made by the accused-appellant before the villagers as well as recovery of two dead bodies on the basis of such confession beyond any. reasonable doubt. The manner of killing disclosed by the accused-appellant in his alleged confession gets support from the medical evidence noticed above. On the basis of aforesaid evidence and materials it can be safely concluded that the accused-appellant was involved in the murder of the two deceased and also in concealment of the dead bodies and the charge under Sec.302/34 as well as under Sec.201 of the IPC stands proved against the accused-appellant. Only because the informant turned hostile and his fardbeyan could not be formally proved as his statement, the prosecution case cannot be thrown out. The evidence available on record has to be given due appreciation and weightage as per law. Applying that principle, we find no substance in the submission that prosecution case must fail because the informant PW-5 has turned hostile and his fardbeyan could not be formally proved. The evidence of PWs-8 and 9 cannot be discredited only because their names are not specifically mentioned as witnesses in the fardbeyan. Evidence of each witness has to be dealt with on its own merit. 12. As discussed above the defence never posed any challenge regarding identification of the two dead bodies and hence there is no merit in the submission that charges must fail because it was not possible to identify the dead bodies recovered in this case. 13. Evidence of each witness has to be dealt with on its own merit. 12. As discussed above the defence never posed any challenge regarding identification of the two dead bodies and hence there is no merit in the submission that charges must fail because it was not possible to identify the dead bodies recovered in this case. 13. At this stage of dictation of judgment learned counsel of the appellant sought permission to make some further submission on the basis of a judgment of the Supreme Court in the case of Gurdiyal Singh V/s. State of Punjab reported in 1995 Supp (3) SCC 451 : (1995 Cri LJ 4171). 14. On the basis of that judgment it was submitted that since other co-accused have been acquitted by the trial Court therefore this appellant alone cannot be convicted with the aid of Sec.34 of the IPC for the offence under Sec.302 of the IPC. In view of this submission it is relevant to notice that in Paragraph-36 of the impugned Judgment while considering the case of other four co-accused who have not been acquitted, the learned trial Court has noticed that there is no evidence worth the name to prove the charges against four accused save and except the extra judicial confessional statement of co-accused, if appreciated the submission of the defence that there must be some evidence in respect of those accused who did not make confession and if there be such evidence then the confession of a co-accused can lend assurance to a conclusion of guilt and for fortifying it. Since there was no other evidence produced by the prosecution against the remaining four accused to establish their participation in the crime except the confessional statement of this appellant, they were acquitted. However, the prosecution case regarding participating presence of more than one accused was not doubted or found disproved. Clearly, in the facts of the case. Court below has given benefit of doubt because the identity of the other co-accused could not be satisfactorily established due to lack of any other evidence except confession of this appellant. 15. However, the prosecution case regarding participating presence of more than one accused was not doubted or found disproved. Clearly, in the facts of the case. Court below has given benefit of doubt because the identity of the other co-accused could not be satisfactorily established due to lack of any other evidence except confession of this appellant. 15. The issue as a proposition of law, whether on acquittal of three out of four accused the remaining accused can be convicted with invocation of Sec.34, IPC has been answered in affirmative in another judgment of the Supreme Court in the case of Harshadsingh Pahelvansingh Thakore V/s. State of Gujarat reported in 1976 (4) SCC 640 : (1977 Cri LJ 352). That judgment by a bench of three Judges has been noticed in the case of Gurdial Singh V/s. State of Punjab (1995 Cri LJ 4171) (SC) (supra) and paragraph-8 of the judgment has been quoted which is as follows : "The flaw in this submission is obvious. The Courts have given the benefit of doubt of identity but have not held that there was only one assailant in the criminal attack. The proposition is plain that even if some out of several accused are acquitted but the participating presence of a plurality of assailants is proved, the conjoint culpability for the crime is inescapable. Not that the story of more than one person having attacked the victim is false, but that the identify of the absolved accused is not firmly fixed as criminal participants. Therefore, it follows that such of them, even if the number dwindled to one, as are shown by sure evidence to have knifed the deceased, deserve to be convicted for the principal offence read with constructive provision." 16. Thus in law there is no difficulty in appropriate case in convicting even one accused with the aid of Sec.34 of the IPC provided the findings or the materials on record show the participating presence of plurality of assailants. In this case as the facts stand there is no finding to discredit the prosecution case regarding participation of more than one person in the crime. The injury found by the doctor showing strangulation of neck of two deceased persons cannot be achieved by a single assailant. In this case as the facts stand there is no finding to discredit the prosecution case regarding participation of more than one person in the crime. The injury found by the doctor showing strangulation of neck of two deceased persons cannot be achieved by a single assailant. The manner of occurrence given by the accused appellant in his confession proves the participation of plurality of assailants, but as regards their identity, there was no other corroborating evidence, and in that view of the matter the other co-accused have been acquitted. Hence on facts this Court finds the case of the appellant to be covered by the judgment of the Apex Court in the case of Harshadsingh Pahelvansingh Thakore V/s. State of Gujarat (1977 Cri LJ 352) (supra). Thus, the last submission advanced on behalf of the appellant is also found to be of no substance and there is no legal infirmity in confirming the conviction of the appellant under Sec.302 read with 34 of the IPC in the facts and circumstances of this case. 17. In view of the aforesaid discussions, this Court finds no merit in this appeal. It is therefore dismissed.