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2012 DIGILAW 1066 (PAT)

Mahendra Choudhary v. State of Bihar

2012-08-02

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J.--The above named two appellants have preferred this appeal against the judgment of conviction dated 04th August, 2000 and the order of sentence dated 07th August, 2000 passed by the 3rd Additional Sessions Judge, Madhepura in Sessions Trial No. 152 of 1991 by which the Trial Court had found and held the appellant Mahendra Choudhary guilty for the offences punishable under Section 326 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and the appellant Deo Narain Choudhary guilty for the offences punishable under Section 324 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years. 2. Initially, the appellants along with three others, namely, Bhupendra Choudhary, Dhanpat Choudhary and Upendra Choudhary were charged for the offences punishable under Section 395 of the Indian Penal Code. Accused Mahendra Choudhary was also separately charged for the offences punishable under Section 326 of the Indian Penal Code. Accused Deo Narain Choudhary was also charged separately for the offences punishable under Section 307 of the Indian Penal Code. 3. The fardbayan of Krit Narayan Choudhary was recorded at 7 AM at the Government Hospital at Madhepura when he regained consciousness for an occurrence which took place on 15.05.1988. According to the informant, he was sleeping in his house in front of his door, whereas his son Shiv Shankar Choudhary was sleeping in front of the ‘baithka’. His other children Bhim Shankar Choudhary and Gouri Shankar Choudhary were studying by the lantern light, whereas the ladies and children were sleeping inside the house. All of a sudden, they saw that about 15 persons variously armed with bhala, farsa, fire-arms and lathis came to his house and demanded money and asked him to give up all his valuables. His son Shiv Shankar Choudhary identified the dacoits and stated that they are the neighbours. On hearing this comment, Deo Narain Choudhary gave a farsa blow to Shiv Shankar Choudhary while other entered the house. The son of the informant identified Mahendra Choudhary, Bhupendra Choudhary, Upendra Choudhary, Dhanpat Choudhary, Hari Ballav Choudhary, Nunu Dubey @ Chandra Kishore Dubey, and Ramavtar Mishra @ Bacchu Mishra. The informant told the miscreants that they should not be committing dacoity, when it is well known to them that there was going to be an enquiry regarding the land in dispute between them, the following day. The informant told the miscreants that they should not be committing dacoity, when it is well known to them that there was going to be an enquiry regarding the land in dispute between them, the following day. On his comment, Mahendra Choudhary said, that since the informant had now identified them, he should be killed, whereupon Mahendra Choudhary released an arrow, which pierced the stomach of the informant. The informant raised hue and cry, whereupon the villagers gathered at the place of occurrence, amongst them, were Bishundeo Yadav, Bhumi Choudhary, Saryug Choudhary and Sadanand Choudhary. On seeing the villagers, the dacoits ran away from the place of occurrence. Some of them went to the house of Nunu Dubey @ Chandra Kishore Dubey and others entered the house of Ramavtar Mishra. The miscreants who had come from outside escaped from the village. The informant claims that he fainted after the occurrence and could only regain consciousness at the time of recording of the fardbayan. 4. The defence of the appellants is that there is land dispute between the parties and they have been implicated in this case because of the said land dispute. In order to establish their defence, they have relied on the statements of DWs 1, 2 and 3 as well as Exhibit-A, which is the sale deed executed by Chandeshwari Sahu in favour of the appellant Mahendra Choudhary and others in respect of lands appertaining to Khata No. 552, Plot No. 3903 (old) and 10859 & 10869 (new, measuring 14 dhurs, which he purchased on 16.06.1982. Exhibit A/1 is also a sale deed executed by Chandeshwari Sahu in favour of Hari Ballav Choudhary relating to the same khata number, Plot No. 10858 and 10860 ( both new), for an area of 7 dhurs executed on 07.05.1984 and Exhibit-B is the certified copy of the order dated 09.02.2008 passed by the 1st Additional Sessions Judge, Madhepura in Criminal Revision No. 113 of 1985 under Section 144 and 145 of the Code of Criminal Procedure in which the 1st Additional Sessions Judge, Madhepura has directed the Magistrate to either drop the proceedings or to proceed in accordance with law. It is with respect to plot no. 10860 that a dispute exists between the parties, which is admitted by the prosecution witnesses as well. 5. It is with respect to plot no. 10860 that a dispute exists between the parties, which is admitted by the prosecution witnesses as well. 5. It has been argued on behalf of the appellants that the First Information Report has been lodged after a great delay, the case is a concocted one, purposely involving the appellants with whom there is a dispute and proceedings under Section 144 & 145 of the Code of Criminal Procedure are pending in which there was a direction for an enquiry which was supposedly going on to be held on 15.05.1988 i.e. the morning on which the occurrence had taken place. One of the issues raised on behalf of the appellants is that the First Information Report has been filed after a delay of four days, for which there is no adequate explanation, besides which, the witnesses who were examined, had stated that their statements were recorded by the Police two days after the occurrence. It is submitted that there is suppression of the information given by the son of the informant, which leads to the conclusion that the prosecution has not come up with the correct facts and that the names of the appellants have been dragged in this case because of the land dispute. It has also been argued that the fact that the fardbayan was recorded on 19.05.1988 and it was said to be received in the Court of the Chief Judicial Magistrate, Madhepura on 22.05.1988, i.e. after a delay of 72 hours, would lead to the conclusion that fardbayan has been recorded after due deliberations, involving these appellants in the occurrence. 6. I shall commence with the discussions by referring to the evidence of PW 7, Dr. J. B. Singh. PW 7 has examined the informant and found that one arrow was inserted in the abdominal cavity which had penetrated ‘part of the interior margin of the liver’ ½” x ¼” x ½” deep in the liver. This injury has been found to be grievous in nature. J. B. Singh. PW 7 has examined the informant and found that one arrow was inserted in the abdominal cavity which had penetrated ‘part of the interior margin of the liver’ ½” x ¼” x ½” deep in the liver. This injury has been found to be grievous in nature. Similarly, PW 7 has also examined Shiv Shankar Choudhary (PW 3), who is the son of the informant and found one incised would ½” x ¼” x skin deep on the left index finger on medial side, swelling 2” x ½” on the left palm, lacerated wound 2” x 1/2” on the right forearm, swelling 3” x 1” on the right lower leg, and swelling 2” x ½” into left leg. All the injuries have been opined to be simple in nature. Thus, there is no doubt about the fact that the occurrence had taken place and that the informant along with his son had received injuries as defined in the First Information Report. 7. Regarding the question of delay as the informant was unconscious, it appears that no question was put forth to the PW 7, the doctor, from which it could be deciphered whether the informant had remained unconscious for three days, prior to giving his bayan before the Police. In the context of there being the delay, the injury reports (Exhibits 2 and 2/A) for which the requisition made by the Police Officers on 15.05.1988 to the doctor indicates that the informant Krit Narayan Choudhary and his son were rushed to the Police Station on 15.05.1988 and that is why, the Police Officer had sent the requisition for medical examination of the injured persons on the same day between 9 AM to 09:15 AM. In the circumstances, it was up to the prosecution to show that the informant had gained consciousness between 15.05.1988 to 19.05.1988. The argument is that even if it is accepted that the informant could not have made the statement, there is no reason as to why his son Shiv Shankar Choudhary had not described the occurrence to the Police. It is submitted that the evidence of Shiv Shankar Choudhary has been deliberately withheld. At this stage, it may be noted that at the time of occurrence, the age of Shiv Shankar Choudhary was 14 years and that may be a reason why his statement was not recorded by the Police. It is submitted that the evidence of Shiv Shankar Choudhary has been deliberately withheld. At this stage, it may be noted that at the time of occurrence, the age of Shiv Shankar Choudhary was 14 years and that may be a reason why his statement was not recorded by the Police. A criminal case cannot be based on conjectures, the facts that the Officer-in-charge of the Police Station had not taken any steps to examine Shiv Shankar Choudhary or the other sons of the informant is the fault on the part of the Officer-in-charge of the Police Station and not the informant. On the other hand, the possibility of false implication cannot be ruled out as delay in lodging the First Information Report gives rise to several probabilities and scope for improving the prosecution version. 8. These facts have to be tested along with the evidence recorded in this case. Altogether, seven witnesses have been examined on behalf of the prosecution. The evidence of PW 7 Dr. J. B. Singh has already been discussed above. I would now refer to the evidence of other witnesses on the point of manner of occurrence and the question of identification. 9. PW 1 Bhumi Choudhary was named in the First Information Report as a witness, has stated that on hearing the alarm raised by the informant, he came to the place of occurrence and saw that Shiv Shankar Choudhary was in an injured condition. He claims that he was not examined by the Investigating Officer during the investigation of this case. PW 1 is related to the informant Krit Narayan Choudhary. This witness obviously did not witness the manner in which the occurrence had taken place. He does not claim to identify any of the miscreants. 10. PW 2 Sadanand Choudhary has also been named in the First Information Report as a witness. This witness has also stated that he went to the place of occurrence on hearing the alarm and the names of the appellants were disclosed by the informant. This witness is neither an eye-witness to the occurrence nor has he claimed to identify the appellants at the time when the occurrence was taking place. 11. PW 3 Shiv Shankar Choudhary is the son of the informant and one of the injured of this case. He supports the prosecution case in toto. This witness is neither an eye-witness to the occurrence nor has he claimed to identify the appellants at the time when the occurrence was taking place. 11. PW 3 Shiv Shankar Choudhary is the son of the informant and one of the injured of this case. He supports the prosecution case in toto. He accepts that there was a land dispute and that a local inspection was going to be conducted for the said lands on the following morning of the occurrence. It has been pointed out that there are certain discrepancies in his evidence as he states that his father was sleeping in the room, whereas in the First Information Report, it is stated that the informant was sleeping outside his house. This discrepancy does not go to the root of the case and, therefore, is not very important for the purpose of either acquitting or convicting the appellants. Attention of this Court has been drawn to the statement made in paragraph 12 of the deposition of PW 3, where he stated that he remained unconscious for three days. It is stated that this witness is giving a false statement in order to cover up the delay in not lodging the First Information Report. This Court finds that the evidence of PW 3 cannot be totally discarded, because of certain anomalies in his deposition. Besides which, the attention of the doctor (PW 7) ought to have been drawn to this aspect of the matter by the prosecution, if they intended to establish that the fardbayan was lodged after unexplained delay. 12. PW 4 Bhim Shankar Choudhary, also the son of the informant, was about 14 years of age at the time of occurrence. He supports the prosecution case that certain persons entered his house and that they assaulted his father and brother and took away some money from them. According to the Counsel for the appellants this witness has stated that he was sleeping outside his house, which is contrary to what has been stated in the First Information Report. At paragraph 12 of the deposition, this witness has also stated that he had also given his statement before the Police two days after the occurrence. On the basis of the aforesaid statement of this witness, Counsel for the appellants submits that this statement of PW 4 has been suppressed by the prosecution. At paragraph 12 of the deposition, this witness has also stated that he had also given his statement before the Police two days after the occurrence. On the basis of the aforesaid statement of this witness, Counsel for the appellants submits that this statement of PW 4 has been suppressed by the prosecution. The Investigating Officer in this case was not examined by the prosecution and therefore, the Court was not in a position to confirm this aspect of the matter. Obviously, the case diary has been prepared after the institution of the fardbayan and, therefore, not much reliance can be placed on this aspect of the matter. As such, the argument on behalf of the appellants that the first statement made, regarding the manner of occurrence has been suppressed is not tenable in law in the facts aforesaid. 13. Lastly, the informant Krit Narayan Choudhary has been examined as PW 5. He has supported the prosecution case and also supported the identification made by him and by his son. This witness supports the fact that there is land dispute with respect to plot no. 10860. There is nothing in the cross-examination of this witness which would falsify the occurrence. 14. PW 6 Ganesh Prasad Yadav is a formal witness who has proved Exhibit-1, the formal First Information Report. 15. On the basis of the aforesaid evidence in this case, it has been submitted on behalf of the appellants that there are several discrepancies in the evidence of the witnesses and there is a good reason for implication of these appellants in the said occurrence. The Trial Court has rightly not found sufficient evidence to convict the appellants under Section 395 of the Indian Penal Code. Although, the tenor of the evidence would suggest that about 10-15 persons had come to the house of the informant and committed the aforesaid acts. The Trial Court has relied on the statement of the witnesses and the informant in the First Information Report to prove that these appellants out of enmity had indulged in the aforesaid crime. On behalf of the appellants, it has been argued that there was no occasion for these appellants to attack the informant and his family members as even according to their case, they had a bonafide title over plot no. 10860 by virtue of sale deed. On behalf of the appellants, it has been argued that there was no occasion for these appellants to attack the informant and his family members as even according to their case, they had a bonafide title over plot no. 10860 by virtue of sale deed. However, this Court observes that it hardly matters whether the claim of the appellants is bonafide vis-à-vis the lands in question, the fact that a proceeding under Section 145 of the Code of Criminal Procedure was pending between the parties with respect to the plot aforesaid is sufficient reason to hold that there was a land dispute between the parties. 16. The question before this Court is whether the delay in lodging of the First Information Report is fatal to the prosecution case. Before giving my comments, I will refer to certain judgments relied upon by the Counsel for the appellants to argue that delay in lodging the First Information Report or sending the First Information Report to the Court of the Chief Judicial Magistrate would be fatal to the prosecution. 17. The first case relied upon is the case of Datar Singh vs. The State of Punjab [ASIR 1974 Supreme Court 1193], In this case, the Apex Court held that the appellant could not be convicted in a case under Section 302 of the Indian Penal Code as the presence of the witnesses at the scene of murder had been proved to be unreliable and on that ground that no adverse inference could be drawn. It was held that the fact that the accused did not surrender or were not traceable for one year could not be held against them. This case is not applicable to the facts of the present case. 18. In the case of Ramesh Baburao Devaskar and Others vs. State of Maharashtra [(2007) 13 Supreme Court Cases 501], the Apex Court while deciding whether delay in lodging of the First Information Report and subsequent sending the First Information Report to the Court after a delay held that it can be fatal for the prosecution in certain circumstances. 18. In the case of Ramesh Baburao Devaskar and Others vs. State of Maharashtra [(2007) 13 Supreme Court Cases 501], the Apex Court while deciding whether delay in lodging of the First Information Report and subsequent sending the First Information Report to the Court after a delay held that it can be fatal for the prosecution in certain circumstances. There must be an explanation by the prosecution for not sending the report within time, in the absence of such an explanation, the Apex Court had held that after taking the entire evidence into account and the fact that some of the witnesses were not reliable and it was a case of rivalry, the delay became a circumstances to show the falsity of the prosecution version. Thus, the Court must consider the evidence and other material before coming to a conclusion that a person can be acquitted on the ground of delay in lodging the F.I.R. 19. In the case of Rupchand Chindu Kathewar vs. State of Maharashtra [(2009) 17 Supreme Court Cases 37], the question was whether the delay in lodging of the First Information Report will be fatal to the prosecution story? In the case aforesaid, the First Information Report was lodged after a delay, the Apex Court took into account not only the fact that the First Information Report was lodged after a delay but also the evidence of the witnesses which did not inspire confidence of the Court. In fact, it has been observed that delay in lodging of the First Information Report by itself cannot be fatal to the prosecution case. 20. In fact, it has been observed that delay in lodging of the First Information Report by itself cannot be fatal to the prosecution case. 20. In the case of Boddella Babul Reddy vs. Public Prosecutor, High Court of Andhra Pradesh, [(2010) 2 Supreme Court Cases 648], the appellant was acquitted and the judgment of the High Court convicting the appellant was set aside on the ground that the ocular evidence and the medical evidence did not corroborate each other, the evidence of the witness did not inspire confidence, the police witnesses contradicted each other regarding the matter of timing of the occurrence, failed to prove a sketch map, and that the complaint was lodged after consultation of legal advisor and under the guidance of the M.L.A. The facts of the aforesaid case differ from the facts of the present case and this case cannot be relied upon for the purpose of holding that the delay in lodging the First Information Report was fatal to the prosecution case. 21. On perusal of the judgment on this issue, the law that emerges is that delay in lodging of the First Information Report by itself is not fatal. The Court must come to a finding that the evidence of the witnesses does not inspire confidence. In the present case, the delay in lodging of the First Information Report has been explained in the First Information Report itself by stating that the informant was unconscious and was not in a position to record his statement before the Police. Although, this Court cannot find fault in the manner in which the occurrence has been described, the question of implication of these appellants is the issue which is troubling the minds of this Court. The fact that even after the First Information Report was instituted on 19.05.1988, and was not forwarded to the Court within 24 hours as required under the law, raises certain doubts with respect to the possibility of implicating person with whom the informant admittedly had a dispute. The fact that even after the First Information Report was instituted on 19.05.1988, and was not forwarded to the Court within 24 hours as required under the law, raises certain doubts with respect to the possibility of implicating person with whom the informant admittedly had a dispute. The fact that the two sons of the informant who were both old enough to give their statements before the Police were not examined by the Officer-in-charge of the Police Station, or had not volunteered to give their version of the occurrence immediately after the occurrence leads this Court to doubt, not the manner of the occurrence, but the involvement of the appellants in the said occurrence, in the facts as stated above. Along with the aforesaid aspects, the non-examination of the Investigating Officer in the present case has caused serious prejudice to the appellants. 22. In the facts aforesaid, I hold that it is not safe to convict to appellants. Accordingly the judgment of conviction and the order of sentence passed in Sessions Trial No. 152 of 2000 is set aside. The appellants are acquitted of the charges levelled against them and they are also discharged from the liabilities of the bail bonds furnished earlier in this case. 23. In the result, this appeal is allowed. Appeal allowed.