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2012 DIGILAW 1374 (PAT)

Raj Kapur Kumar v. State Of Bihar

2012-09-26

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT Per: SHYAM KISHORE SHARMA, J. The sole appellant Raj Kapur Kumar has preferred this appeal against the judgment of conviction dated 06.05.2005 and order of sentence dated 07.05.2005 passed by the learned Additional Sessions Judge, Fast Track Court No.1, Nalanda in Sessions Trial No. 142 of 2004/87 of 2004 whereby he has been held guilty under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. 2. Fardbeyan (Ext.2) of Chaukidar 6/5 Ravindra Paswan of village Punha, P.S.Rahui, District Nalanda was recorded by S.I. Yogendra Prasad, Officer-in-charge of Rahui Police station at 8. A.M. on 03.09.2003 wherein the Chaukidar has stated that in the preceding night at about 11.30 P.M. cry enunciated that Raj Kapur Kumar at 10.30 P.M. has strangulated his wife Sunita Devi aged 26 years to death and in course of escaping he was overpowered by the villagers and neighbours and was nabbed. On hearing, the Chaukidar rushed to the house of Raj Kapur Kumar where Urmila Devi (P.W.5) and Sanju Kumari (P.W.4) in presence of their husbands and other villagers divulged that at preceding 10.30 P.M. they heard cry enunciating from the roof of Raj Kapur Kumar to the extent that Sunita Devi was crying for her rescue. When the voice was chocked, these two persons along with their family members and neighbours went to the house of Raj Kapur Kumar and found the accused there. He was trying to escape but he was suspected to have strangulated Sunita Devi. The villagers were aware that Sunita Devi was disliked by Raj Kapur Kumar as he had illicit relationship with his Bhabhi who was living with her husband at Biharsharif. However, the fardbeyan resulted in formal F.I.R. of Rahui P.S. Case No. 138 of 2003 under Section 302 of the Indian Penal Code against the sole accused. The investigation started. In course of investigation, inquest report (Ext.3) was prepared, post mortem report (Ext.4) was obtained, statements of the witnesses under Section 161 of the Code of Criminal Procedure were recorded and place of occurrence was inspected. The police found the case to be true, so chargesheet was submitted. After cognizance, police papers were supplied and as the case was triable by the court of Sessions, it was accordingly committed where charge under Section 302 of the Indian Penal Code was framed and explained to the accused who pleaded innocence. The police found the case to be true, so chargesheet was submitted. After cognizance, police papers were supplied and as the case was triable by the court of Sessions, it was accordingly committed where charge under Section 302 of the Indian Penal Code was framed and explained to the accused who pleaded innocence. Hence trial proceeded. 3. There appears no specific defence but the defence of the appellant was that he was not present in the house when the unfortunate incident had taken place and he was unnecessarily suspected to be the person for causing death of his wife though his wife had no grievance against him. 4. In order to substantiate its case, the prosecution has examined 10 witnesses. They are: P.W.1 Binod Kumar, P.W.2 Chandeshwar Singh, P.W.3 Har Govind Singh, P.W.4 Sanju Kumari, P.W.5 Urmila Devi, P.W.6 Rabindra Paswan, the informant of the case, P.W.7 Pato Devi, P.W.8 Arvind Mahto, P.W.9 Sita Ram Singh and P.W.10 Dr. Mithlesh Kumar. 5. The trial court after hearing learned counsel for the parties and considering the evidences on record came to the conclusion that the prosecution has been able to prove the charge against the accused beyond the shadow of all reasonable doubts and passed the order of conviction and sentence, as stated above. 6. This Court is required to reappraise the evidences on record and to see as to whether there were materials on record to prove the charge against the appellant beyond the shadow of all reasonable doubts or not. 7. First of all, we would like to discuss the evidence of the doctor P.W.10 Mithilesh Kumar who held post mortem over the dead body of the deceased. On 03.09.2003, this witness was posted as Medical Officer, Sadar Hospital, Biharsharif and on that day he held post mortem over the dead boy of Sunita Devi aged 26 and found presence of rigour mortis and following injuries: (i) Abrasion left side of supra external region- 1”x ¾”. (ii) Abrasion near thyroid cartilage – 1”x3/4”. (iii) Bruise right side of the neck 1 ½”x3/4” black. (iv) Both eyes red and congested. On internal examination, he found haemotoma right side of the neck muscle and fracture of thyroid cartilage. The time elapsed since death was within 24 hours and cause of death was asphyxia due to throttling. (ii) Abrasion near thyroid cartilage – 1”x3/4”. (iii) Bruise right side of the neck 1 ½”x3/4” black. (iv) Both eyes red and congested. On internal examination, he found haemotoma right side of the neck muscle and fracture of thyroid cartilage. The time elapsed since death was within 24 hours and cause of death was asphyxia due to throttling. The evidence of the doctor is that the death was on account of throttling and it was within time which has been alleged by the prosecution at the time of initial versions. 8. Once the homicidal death of Sunita Devi has been proved, then this Court is required to see as to whether the witnesses who have been examined on behalf of the prosecution have fully supported and established the prosecution case or not. For that eight witnesses have been examined. Out of them, P.Ws. 1, 2, 3, 4 and 5 were persons who were alleged to be the first persons and came to know about the occurrence and their names are mentioned in the fardbeyan but unfortunately while deposing in court they were declared hostile and they did not support the prosecution case. 9. P.W.6 was a village Chaukidar and he became the informant of the case. His initial version was that Sunita was killed on account of throttling. She was left alone in the house of the husband. The husband in the night was trying to escape after throttling his wife but was caught. That was the initial version of the case as is mentioned in the fardbeyan. Unfortunately, while deposing in court this witness (the informant) appears to have been gained over and did not support his initial version. He had to be admant upon the prosecution. In cross-examination, this witness has stated that he was member of the mob and he could explain that he was not aware of the contents of the fardbeyan as it was not read over to him. He further stated that he was not knowing the name of the assailant of Sunita Devi. 10. Other witnesses are P.Ws. 7 and 8 who are mother and brother respectively of the deceased Sunita Devi. They were not present at the place of occurrence. They received information on the next day and came to know about the murder of Sunita Devi. They are hearsay witnesses. 10. Other witnesses are P.Ws. 7 and 8 who are mother and brother respectively of the deceased Sunita Devi. They were not present at the place of occurrence. They received information on the next day and came to know about the murder of Sunita Devi. They are hearsay witnesses. P.W.7 while deposing has stated that some stranger had come and told about the occurrence. She did not know the stranger. She has only suspected that the accused had illicit relationship with his bhabhi and for that reason he might have killed his wife. More or less is the similar evidence of P.W.8. Both P.Ws. 7 and 8 were not the natural witness as they were not present at the place of occurrence. At best they can be described as hearsay witnesses and are not natural witnesses for the purpose of conviction. The prosecution was also required to prove the presence of the accused along with the deceased in the night of the occurrence but that was not proved. Other witnesses have turned hostile and have not supported the prosecution version. P.Ws. 1 to 5 are the persons of the village of the accused. The deceased was the daughter-in-law of the village. After she died it could be presumed that witnesses 1 to 5 might be having any reason for not supporting the prosecution case but P.W.6 who was working as Chaukidar, his role cannot be minimized and he has given complete go-bye to his earlier version which had resulted in F.I.R., taking cognizance, framing charge, proceeding trial and conviction and appeal. The fardbeyan was there and that fardbeyan was recorded by the police on the statement of Chaukidar. Unfortunately, Chaukidar has not supported the prosecution case. There is nothing on the record from which it could be inferred that the prosecution has been able to prove the charge beyond the shadow of all reasons doubts. Then we have no option but to acquit the accused. If the Chaukidar ought to have supported the prosecution case, then it could have been difficult for us to acquit the accused but the Chaukidar who has set the law in motion has defeated the scope. The behaviour of such a person has to be taken care of. 11. Then we have no option but to acquit the accused. If the Chaukidar ought to have supported the prosecution case, then it could have been difficult for us to acquit the accused but the Chaukidar who has set the law in motion has defeated the scope. The behaviour of such a person has to be taken care of. 11. In view of the discussions aforesaid, we find that there is no material available on the record to show that the prosecution has been able to prove the charge beyond the shadow of all reasonable doubts against the appellant. Accordingly, the appellant deserves to be acquitted. 12. In the result, the judgment of conviction and order of sentence passed against the appellant is set aside and the appeal is allowed. The appellant is acquitted of the charge. Since the appellant is in custody, he is directed to be released from custody forthwith, if not wanted in any other case. 13. Before parting with this judgment, it must be recorded that unfortunate thing in this case is that the informant, who was chaukidar No. 6/5 Ravindra Paswan, son of Late Brahamdeo Paswan of the locality, had resiled from his earlier statement. The conduct of the Chaukidar was that firstly he gave his statement and on the basis of which F.I.R. was lodged and subsequently during trial he totally denied his earlier version. 14. Let copy of this judgment be sent to the District Magistrate and the Superintendent of Police, Nalanda. The Superintendent of Police, Nalanda will enquire into the conduct of the concerned Chaukidar and will take appropriate action, if so desired. Appeal allowed.