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Jharkhand High Court · body

2009 DIGILAW 287 (JHR)

Sant Bahadur v. State of Bihar

2009-02-20

D.N.PATEL, M.Y.EQBAL

body2009
Judgment.- D.N. Patel, J.--Both the Criminal Appeals are arising out of the judgment and order of conviction and sentenced dated 10th & 11th July, 2000 respectively, passed by the learned 6th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 197 of 1997/T.R. NO.4 of 2000, arising out of Kotwali (Sukhdeo Nagar) P.S. Case No. 480 of 1996, corresponding to G.R. No. 2935 of 1996, whereby, the appellants have been convicted for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code vide order dated 10th July, 2000 and have been sentenced to undergo rigorous imprisonment for life and they have further been convicted for the offence under Section 201 to be read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. Both the sentences have been ordered to run concurrently. 2. The brief facts of the case are as under:- The date of incident is 14th October, 1996 at Shiva Chemical Factory. Chandra Bahadur alias Burha Bahadur (deceased) alongwith PW-1 (Jagernath Munda) and PW-2 (Kunul Topno) were on duty at Shiva Chemical Factory. At about 7.00 p.m. both the accused-appellants came and knocked the gate of the factory and, thereafter, Chandra Bahadur alias Burha Bahadur (deceased), who was serving as a nightguard of the factory, opened the small gate. Accused came inside. The informant was also there in the factory. Both the accused gave threat only to the informantJagernath Munda (PW-1) that they want to teach a lesson to Chandra Bahadur alias Burha Bahadur. Thereafter, both the accused had gone towards the colony side and within fifteen minutes they came back. They attacked Chandra Bahadur alias Burha Bahadur (deceased) by giving fists blows and knife blows. The deceased had fallen down in front of the office of the factory premises and, thereafter, he was thrown in the furnace. The informant was supplying coal to the furnace of the factory, Thereafter, both the accused had gone to the house of PW-2 (Kunul Topno) where they told PW-2 (Kunul Topno)' and his wife PW-4 (Asrani Topno) that they have committed murder of Chandra Bahadur alias Burha Bahadur (deceased) and they gave threat that they should not disclose this fact to anyone. 3. There were other workmen also in the factory on the date of incident. 3. There were other workmen also in the factory on the date of incident. No other workmen has been examined as witness except PW-1 (Jagernath Munda), PW2 (Kunul Topno) and PW-5 (Ramdas Choudhary), who, as per the First Information Report, lodged by PW-1 (Jagernath Munda), had stayed in the factory in the night of 14th October, 1996, nor the fire of furnace was extinguished by the informant (PW-1), who was supplying coal to the furnace, so that a man's life can be saved or at least traces of the human being could be find out by the Investigating Officer. Though PW-2 (Kunul Topno), PW-3 (Krishna Kumar Sharma-owner of the factory) and PW-4 (Asrani Topno) were informed by PW-1 (the informant) immediately after the incident, they did not disclose anyone about the incident, much less to police on 14th, 15th, 16th and 17th October, 1996. The First Information Report was lodged by PW-1 (the informant) only on 18th October, 1996. Neither the dead body was recovered nor the scene of offence Panchanama has been drawn nor any blood sample has been recovered where the deceased was attacked by knife initially nor there is any post mortem report nor the Investigating Officer has been examined nor other witnesses, who were present in the factory premises, have been examined. Chargesheet was filed and upon evidence of solitary eye witness (PW-1) the conviction has been accorded against these appellants for the offences punishable under Section 302 to be read with Section 34 of the Indian Penal Code for life imprisonment and for the offence punishable under Section 201 to be read with Section 34 of the Indian Penal Code for rigorous imprisonment for seven years and, therefore, the present appeals have been preferred. 4. We have heard the learned counsel appearing for the appellants, who has mainly submitted that the prosecution has failed to prove the offences beyond reasonable doubt. There are number of omissions, contradictions and improvement in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the trial court and, therefore, the judgment and order of conviction and sentence passed by the trial court deserves to be quashed and set aside. It has also been submitted by the learned counsel for the appellants that there were other witnesses also in the factory, who were working in the factory, have not been examined. It has also been submitted by the learned counsel for the appellants that there were other witnesses also in the factory, who were working in the factory, have not been examined. The whole case of the prosecution is based upon the solitary eye witness Jagernath Munda (PW1), who is also informant. There is no corroboration to the evidence of this witness by other witnesses. It has also been submitted by the learned counsel for the appellants that though the date of incident is 14th October, 1996, without any reason this solitary eye witness and other two supporting witnesses i.e. PW-2 and RW-4 have remained silent on 14th, 15th, 16th and 17th October, 1996 and at a much belated stage i.e. on 18th October, 1996 the First Information Report has been lodged. It has been further submitted by the learned counsel for the appellants that PW-1 has given more than one statements before the police, as per paragraph no. 13 of his deposition. What is stated in other two statements has not come on record before the trial court by the deposition of the Investigating Officer. In this case the Investigating Officer has not at all been examined as prosecution witness. Likewise there are no corroborative evidences. to the deposition of PW-1 (Jagernath Munda). As per the deposition of PW-1, the deceased was initially assaulted by fists blows and knife blows for some time. Therefore, there must have been blood at the scene of offence. Neither any weapon has been recovered from any of the accused nor the blood sample has been collected. Thus, there is no corroboration of the evidence of PW-1 and it has also been submitted by the learned counsel for the appellants that after committing murder, there was no reason for the accused-appellants to go at the house of PW-2 and PW-4 to make proclamation or announcement that they have committed murder of the deceased. These two witnesses i.e. PW-2 and PW-4 are husband and wife. They are got up witnesses. PW-2 has stated in his cross-examination that he does not know who has committed murder of the deceased. The depositions of these two witnesses are not reliable. In fact, the accused are innocent and have not committed any offence, much less murder of the deceased. Prosecution has also failed to prove motive. They were arrested immediately. Accused no. 2, who is appellant in Cr. The depositions of these two witnesses are not reliable. In fact, the accused are innocent and have not committed any offence, much less murder of the deceased. Prosecution has also failed to prove motive. They were arrested immediately. Accused no. 2, who is appellant in Cr. Appeal No. 339 of 2001, was granted bail during the trial and accused no. 1 who is appellant in Cr. Appeal No. 269 of 2000, has undergone twelve and half years of imprisonment. In fact, the solitary eye witness is also not reliable because for no reason he remained silent for four days and only on 18th October, 1996 the First Information Report was registered and as there is no corroboration to the deposition of this witness (PW-1), he is not a reliable witness and, therefore, the conviction based upon the deposition of solitary eye witness deserves to be quashed and set aside. 5. We have also heard the Additional Public Prosecutor appearing on behalf of the State, who has submitted that the prosecution has proved the offence beyond reasonable doubt. PW-1 is an eye witness of the whole incident and looking to the deposition of PW-1, he has narrated the whole incident in detail. It has been stated by PW-1 that both the accused-appellants came in the factory premises by knocking the door of the factory, which was opened by the deceased and thereafter, the accused gave threat to PW-1 and thereafter, again they came with knife and assaulted the deceased by knife for some time and ultimately the dead body was dragged by the accused they have thrown the dead body in the furnace. Thereafter, both the accused had gone at the house of PW-2 and PW-4 and informed them that they have committed murder of the deceased. Looking to the depositions of PW-2 and PW-4, they provide enough corroboration to the deposition of PW-1 and, therefore, they have been rightly punished by the trial court and the judgment and order of conviction and sentence may not be altered by this Court while exercising the appellate jurisdiction. 6. Having heard learned counsel for both the sides and looking to the evidence on record, it appears that the incident has taken place on 14th October, 1996 during night hours. The deceased Chandra Bahadur alias Burha Bahadur was a night-guard in the Shiva Chemical Factory whereas PW-1-the informant was also on night duty. 6. Having heard learned counsel for both the sides and looking to the evidence on record, it appears that the incident has taken place on 14th October, 1996 during night hours. The deceased Chandra Bahadur alias Burha Bahadur was a night-guard in the Shiva Chemical Factory whereas PW-1-the informant was also on night duty. On 14th October, 1996 PW1 was in the factory premises and was supplying coal in the furnace of the factory. Looking to the deposition of PW-1, who is claiming himself to be an eye witness, it has been stated by him in his deposition that both the accused came at about 7.00 p.m. on 14th October, 1996 and knocked the gate of the factory. The deceased, who was a nightguard, opened a small gate of the factory premises. Both the accused came inside the factory and they gave threat to PW-1 that they are going to teach a lesson to the nightguard. Thereafter, they had gone away and after 15-20 minutes they came back. It has also been stated by PW-1 in his deposition that they (the accused) caught hold the deceased infront of the office of the factory premises. Both the accused assaulted the deceased by fists blows and by knife blows for sometime. The deceased had fallen down and thereafter, he was dragged by these two accused up to the furnace and accused had thrown the dead body of the deceased in the furnace and closed the gate of the furnace. It is stated by PW-1 that thereafter these accused had gone at the residence of PW-2 and PW-4. PW-2 and PW-4 are the husband and wife. Both the accused informed them that they have committed murder of Chandra Bahadur alias Burha Bahadur and gave threat to them that they will not inform anybody otherwise they will also be killed. This witness has also stated in his First Information Report that one Munsi Ji was present in the factory premises. PW-1 also informed this Munsi Ji about the whole incident. PW-1 had insisted the Munsi Ji to stay during the night of 14th October, 1996 in the factory premises and in fact, the Munsi Ji had stayed for the whole night of 14th October, 1996 in the factory premises. PW-1 also informed this Munsi Ji about the whole incident. PW-1 had insisted the Munsi Ji to stay during the night of 14th October, 1996 in the factory premises and in fact, the Munsi Ji had stayed for the whole night of 14th October, 1996 in the factory premises. Looking to the deposition of this witness (PW-1), though there were other workmen also in the factory premises, none of them, who was working in the factory premises, has been examined as prosecution witness. Looking to the deposition of PW-1, it is strange that both the accused had gone at the house of PW-2 and PW-4 for making proclamation or announcement that they have committed murder of the deceased. There was no earthly reason for the accused to go at the house of PW-2 and PW-4. There was no reason for the accused to choose the house of PW-2 and PW-4. As per the deposition of PW-1 both the accused had initially assaulted the deceased by knife. Thereafter, the deceased had fallen down who was dragged up to the furnace and was thrown in the furnace. It is also the prosecution case that PW-1 was supplying coal to the furnace of the factory. But this PW-1 had not thereafter put off/extinguished the fire in the furnace. PW-1 had full opportunity to get the fire of the furnace put off after the incident. Accused had gone away after committing murder as per PW-1. This must be the normal behaviour of PW-1, because he was supplying coal to the furnace nor this witness has stated before anyone about the whole incident on 14th, 15th, 16th and 17th October, 1996. First Information Report was lodged by this witness (PW-1) only on 18th October, 1996. No blood stains have been found by the prosecution at' the scene of offence. No weapon has been recovered from any of the accused. No Panchanama of the scene of offence or furnace has been drawn. Under these set of circumstances, it is very unsafe to rely upon the deposition of PW-1. Offence of murder ought to be proved by the prosecution beyond reasonable doubt. No weapon has been recovered from any of the accused. No Panchanama of the scene of offence or furnace has been drawn. Under these set of circumstances, it is very unsafe to rely upon the deposition of PW-1. Offence of murder ought to be proved by the prosecution beyond reasonable doubt. The strange is the behaviour of PW-1, who has not extinguished the fire of the furnace nor he has shouted and also the fact that he remained silent on 14th, 15th, 16th and 17th October, 1996 and the First Information Report was lodged only on 18th October, 1996 by him. There was no reason for both the accused only to choose the house of PW-2 and PW-4 and to go there and to make announcement or to disclose before them that they have committed murder of Chandra Bahadur alias Burha Bahadur (deceased). In these facts and circumstances, corroboration of the deposition of this solitary eye witness must be supplied by other evidence but there is no other witness to corroborate the deposition of PW-1 save and except PW-2 and PW-4, who are husband and wife and, therefore, deposition of PW-1 is not wholly reliable and it is highly unsafe to convict the appellants solely on the evidence of PW-1, without corroboration. 7. Looking to the depositions of PW2 and PW-4, it appears that PW-2 was also residing in the factory premises. As per the depositions of this witness (PW- 2), in the night of 14th October, 1996 both the accused came at his house and informed that they have committed murder of the deceased. At that time PW-4 was also present in the house. Thereafter, accused had gone away. It appears that PW-2 is not an eye witness. As stated hereinabove, there was no reason for the accused to choose the house of PW-2 and PW-4 for making announcement or disclosure of the fact of murder committed by them, Generally after committing murder, the accused will not make any proclamation and that too by going at the house of somebody. There must be houses of several other workmen. Looking to the deposition of PW-2 and PW-4, it appears that they are brought up witnesses. PW-4 has stated that thereafter PW-1 came at their house and stayed for the whole night of 14th October, 1996. There must be houses of several other workmen. Looking to the deposition of PW-2 and PW-4, it appears that they are brought up witnesses. PW-4 has stated that thereafter PW-1 came at their house and stayed for the whole night of 14th October, 1996. PW-4 was also informed by PW-1 that both the accused have committed murder of the deceased. Thus, PW-4 is also not an eye witness. She is giving hearsay evidence. What has been stated by PW-1 before PW-4 is the deposition of PW-4. Thus, her evidence is a hearsay evidence. Neither of these two witneses have informed anybody in the factory premises on 14th or 15th or 16th or 17th October, 1996. 8. Looking to the deposition of PW-3 (Krishna Kumar Sharma), who is not an eye witness of the incident, he has stated that the deceased was working in his factory as a guard of the factory and he was informed that the deceased was murdered. Though he was informed immediately on the next day, it appears that he has also remained silent for no reason at all from 15th October, 1996 onwards. The First Information Report was filed by PW-1 on 18th October, 1996. 9. Looking to the deposition of PW-5 (Ramdas Choudhary), who is also not an eye witness, he has stated that PW-1 conveyed him that accused have committed murder of the deceased. This witness has stated that he had gone to the factory premises on 15th October, 1996 where he was informed about the incident by PW-1, whereas, as per the informant (PW1), PW-5 was there in the factory premises on 14th October, 1996 and PW-5 was requested by PW-1 to stay in the factory premises itself on 14th October, 1996. It appears that this witness, as per PW-1, though was present in the factory premises on 14th October, 1996, is not giving correct facts before the court and is hiding material evidence of the whole incident, which has taken place during the night of 14th October, 1996. 10. Looking to paragraph no. 10 of the deposition of this witness-PW-5, he was not in the factory premises on 14th October, 1996 whereas PW-1, who has filed First Information Report, has stated in the First Information Report that he (PW-5) was present in the factory premises on 14th October, 1996 and he stayed in the factory premises for the whole night. 10 of the deposition of this witness-PW-5, he was not in the factory premises on 14th October, 1996 whereas PW-1, who has filed First Information Report, has stated in the First Information Report that he (PW-5) was present in the factory premises on 14th October, 1996 and he stayed in the factory premises for the whole night. This witness (PW-5) has no direct knowledge of the whole incident as per his deposition. He has also remained silent for days together, despite knowledge of murder. 11. Looking to the deposition of'PW6, who is Factory Inspector and a Technical witness, he is also not an eye witness of the murder of the deceased. 12. Thus, looking to the over all evidence of the prosecution witnesses it appears that PW-1 is the only eye witness. Looking to his deposition, though the incident has taken place on 14th October, 1996, he has remained silent on 14th, 15th, 16th and 17th October, 1996. He has filed First Information Report on 18th October, 1996. Likewise as per this witness (PW-1) there were other workmen also in the factory premises but they have not been examined as prosecution witnesses. Though PW-5 was present in the factory premises as per the First Information Report, filed by PW-1, but looking to the deposition of. PW-5, he has stated that he was not present in the factory premises on 14th October, 1996. Likewise, there was no reason for the accused to choose the house of PW-2 and PW-4 for making announcement of the murder committed by them. The deposition of PW-2 and PW-4 is that the accused came at their house and informed PW-2 and PW-4 that they have committed murder of the deceased. This is the only so called corroboration by the deposition of PW-2 and PW-4 to the deposition of PW-1. 13. It also appears from the evidence on record before the trial court that the deposition of PW-1 is not getting any corroboration from the scene of offence Panchanama. Police has not drawn the scene of offence Panchanama at all. PW1 has stated in his deposition that the accused assaulted the deceased by knife. Thereafter, the deceased fell down. There must be blood at the scene of offence. Thereafter, the deceased was dragged up to the furnace. Police has not drawn the scene of offence Panchanama at all. PW1 has stated in his deposition that the accused assaulted the deceased by knife. Thereafter, the deceased fell down. There must be blood at the scene of offence. Thereafter, the deceased was dragged up to the furnace. No blood stained earth, has been collected from the scene of offence by the police nor any weapon has been recovered by the police. Thus, there is no corroboration to the deposition of PW-1. 14. Looking to the deposition of PW1, he was supplying coal to the furnace. As per his deposition the dead body of the deceased was thrown in the furnace by tile accused. Thereafter, accused had gonf3 away at the house of PW-2 to make announcement or to give information to PW.2 and PW-4. The fire of the furnace could have been put off by PW-1 because he was supplying coal to the furnace. Neither any dead body has been recovered by the police nor any traces of the human body has been recovered from the furnace. Thus, there is no corroboration to the deposition of PW-1. 15. Looking to the deposition of PW1, it was absolutely strange that accused has chosen the house of PW-2 and PW-4 to give them information about the murder committed by the accused. No evidence has been brought on record that the accused and PW-2 were friends or relatives or why they have chosen the house of PW-2 for making announcement. These both husband and wife, who are PW-2 and PW-4, have also not informed the police about the murder of the deceased on 14th, 15th, 16th and 17th October, 1996. They are not the eye witnesses of the whole incident. There were other workmen. also in the factory premises, who have not been examined as prosecution witnesses. 16. In our opinion, looking to the deposition of PW-2 and PW-4, they are not supplying any corroboration to the deposition of PW-1 so as to prove the offence beyond reasonable doubt. 17. Thus, the whole case is based upon the evidence of solitary eye witness (PW-1). Looking to the evidence on record, there is no corroboration to the evidence of PW-1. The Investigating Officer has not been examined. Looking to the deposition of PW-1, as per paragraph no. 13 of his deposition, he has made more than one statements before the police. Thus, the whole case is based upon the evidence of solitary eye witness (PW-1). Looking to the evidence on record, there is no corroboration to the evidence of PW-1. The Investigating Officer has not been examined. Looking to the deposition of PW-1, as per paragraph no. 13 of his deposition, he has made more than one statements before the police. Therefore, what this witness has stated in other statements ought to have been brought on record by the Investigating Officer but he has not been examined by the prosecution. Thus, non-examination of the Investigating Officer affects the case of the prosecution. Which is the first version of PW-1 is not brought on record. It is stated by PW-1 that initially his statement was recorded in the factory. Thereafter, another statement was recorded in the police station. 18. When more than one statements are recorded by the Investigating Officer, the statement recorded first in point of time ought to have been brought before the court. Thus, non-examination of the Investigating Officer is a material aspect in this matter. There is no recovery or discovery of the weapon nor there is a collection of blood sample from the scene of offence. Neither the dead body has been recovered nor the traces of the dead body were found from the furnace nor any other workman, who was present in the factory, has been examined as a prosecution witness. Very belated is the First Information Report. Though the owner (PW5) was informed about the murder, he has also not informed anyone from 15th October, 1996 up to 18th October, 1996 about the murder of the deceased. The Magistrate before whom the statement under Section 164 Cr.P.C. was recorded has not been examined as a prosecution witness. Prosecution has also not proved motive of murder. Thus, there is no corroboration to the deposition of PW-1. It has been held by the Hon'ble Supreme Court in several decisions, especially in the case of Anil Phukan vs. State of Assam, as reported in A.I.R. 1993 SC 1462, at paragraph No. 3 that:- "................So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. It has been held by the Hon'ble Supreme Court in several decisions, especially in the case of Anil Phukan vs. State of Assam, as reported in A.I.R. 1993 SC 1462, at paragraph No. 3 that:- "................So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction ................." (Emphasis supplied) In the case of Ramji Surjya vs. State of Maharashtra, as reported in A.I.R. 1983 SC 810, the Hon'ble Supreme Court at paragraph no. 8 has held that:- "There is no doubt that even where there is only a sole eye witness of a crime, a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill-will is suggested. Now in the instant case a careful anal sis of the evidence relating to the inordinate delay involved in t e giving of the first information to the police and the other inherent inconsistencies in the evidence of the sole witness i.e. Surajbai (PW-2) shows that her evidence cannot be considered, as sufficient to find the accused guilty.............." (Emphasis supplied) 19. Looking to the evidence on record, it is highly unsafe to rely upon the sole evidence of PW-1-informant, even the First Information Report has not been given Exhibit number. This aspect of the matter has not been properly appreciated by the trial court. PW-2 and PW-4 are hearsay witnesses. Rest of the witnesses are not the eye witnesses of the incident. Thus, the prosecution has failed to prove the offence beyond reasonable doubt. 20. This aspect of the matter has not been properly appreciated by the trial court. PW-2 and PW-4 are hearsay witnesses. Rest of the witnesses are not the eye witnesses of the incident. Thus, the prosecution has failed to prove the offence beyond reasonable doubt. 20. As a cumulative effect of the aforesaid evidence, reasons and judicial pronouncements, we hereby quash and set aside the judgment and order of conviction and sentence dated 10th and 11th July, 2000 respectively, passed by learned 6th Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 197 of 1997/ T.R. No. 4 of 2000, as the prosecution has failed to prove beyond reasonable doubt the offence committed by the appellants of murder of the deceased. If Sant Bahadur (appellant of Cr. Appeal No. 269 of 2001) is not required to be detained in jail for any other offence, it is directed that he shall be released forthwith from the confinement. It is stated by both the counsel that appellant-accused, namely, Chhailu Kachhap, who is appellant in Cr. Appeal No. 339 of 2000, was on bail during trial but his bail application was rejected after conviction vide order dated 12th September, 2000. Thus, if he is also not required to be detained in jail for any other offence, he is also ordered to be released forthwith from the custody in connection with this offence. Both the Criminal Appeals are, thus, allowed.