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2012 DIGILAW 245 (PAT)

Ram Chandra Thakur v. State of Bihar

2012-02-09

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT Shyam Kishore Sharma, J.:- Ram Chandra Thakur and his brother Prahlad Thakur are aggrieved by the judgment of conviction and order of sentence dated 22.12.1988 passed by the 3rd Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No.186/1984 by which they were convicted under section 302/34 of the I.P.C. and they were sentenced to undergo imprisonment for life. 2. The fardbeyan (Ext.2) was recorded by S.I, S.P. Singh of Sathi outpost (not-examined) on 11.01.1981 at about 6.30 A.M. wherein Ganga Fauzdar (P.W.6) alleged that in the preceding night, he was sleeping inside his house. At about 1.00 A.M. in the night, he heard noise of his cousin Kashi Fauzdar and his wife. The sleep of the informant (P.W.6) was disturbed and after hearing the sound, he came to the Angan and soon thereafter neighbours Khichri Fauzdar (P.W.1), Ramayan Fauzdar (P.W.4), Bansi Fauzdar (P.W.2) also came there and saw Kashi Fauzdar (deceased) was thrashed by Ram Chandra Thakur, Prahalad Thakur, Rajdeo Dubey and Bhola Kumri. When the informant and persons present there tried to intervene then all the named accused persons tried to assault the informant and others. The Kashi Fauzdar (deceased) was taken through a lane. The informant and other persons did not chase due to fear. Soon thereafter, Chaukidar and others came and they were told about the participation of four persons and blood was found inside the Aangan. Two weeks prior to the occurrence, there was dispute with regard to fishing and it came to the court. It appears that on account of that enmity, the offence was committed. The fardbeyan resulted into formal FIR (Ext.3). In course of investigation, inquest of the dead body was prepared. The blood was seized, but surprisingly, neither the inquest nor seizure was brought on the record. Initially, the FIR was lodged under Section 364/34 of the I.P.C., but in course of investigation on 17.01.1981, the dead body was recovered by the police from the bed of the river Pandui and thereafter, the case was converted into under Section 302 and 201/34 of the I.P.C. After submission of charge-sheet, cognizance was taken and the case was committed to the court of sessions where charges under Sections 302/34 and 201/34 were framed against the six accused persons namely Ram Chandra Thakur, Prahalad Thakur, Rajdeo Dubey, Raj Kumar Singh, Bhola Kurmi and Lal Babu Singh. The accused persons pleaded innocence, so the trial proceeded. 3. In order to prove the charge, the prosecution examined 10 witnesses. They are Khichri Fuazdar (P.W.1), Bansi Fauzdar (P.W.2), Mulli Fauzdar (P.W.3), Ramayan Fauzdar (P.W.4), Sheorajia Devi (P.W.5), Ganga Fauzdar (P.W.6), Bandhu Fauzdar (P.W.7), Badri Fauzdar (P.W.8), Madan Mohan Prasad (P.W.9) and Gopal Prasad (P.W.10). 4. P.W.5 is the wife of the deceased. P.W.1 is a seizure witness, but seizure list has not been brought on the record. P.Ws.2, 3 and 4 were declared hostile, though P.W.6 is the informant and brother of the deceased, but he has also been declared hostile. P.W.7 is the witness of the inquest. P.W.8 has been tendered by the prosecution and he has only been cross-examined. P.W.10 is a formal witness. P.W.9 Dr. Madan Mohan Prasad has performed the post-mortem examination upon the dead body of the deceased. Therefore, only one witness, who is wife of the deceased has supported the prosecution case and others have not supported it. The Investigating Officer of the case has not been examined, though, he is alive and from the deposition of P.W.10, it appears that he is still in service. The FIR has no attesting witness, though; the informant has stated that fardbeyan was given in present of Mulli Fauzdar (P.W.3). 5. The trial court after considering the evidence, came to the opinion that the prosecution has been able to prove the charge only against these two appellants and rest four, namely, Raj Kumar Singh, Lal Babu Singh, Bhola Kurmi and Rajdeo Dubey were acquitted of charges. 6. The defence of the accused was of false implication. 7. Now this Court is required to see as to whether the prosecution has been able to prove its charge against the appellants beyond the shadow of all reasonable doubt or not. 8. P.W.5 is only witness, who requires to be discussed. 9. According to the evidence of P.W.5, the occurrence is of 8.00 P.M. and at that time; she was sleeping with her husband on straw bed. At that very time, Ram Chandra and Prahalad alongwith four other companions came to her house and beheaded her husband and thereafter, the dead body was carried outside, but no body came there. In the next morning, the dead body of her husband was found. At that very time, Ram Chandra and Prahalad alongwith four other companions came to her house and beheaded her husband and thereafter, the dead body was carried outside, but no body came there. In the next morning, the dead body of her husband was found. In cross-examination, she has stated that she has named the culprits on the basis of information given to her by the villagers. 10. P.W.6 has stated that he has seen Ramchandra Thakur, Prahalad Thakur, Rajdeo Dubey and Bhola Kurmi inside the Aangan. The dead body was found inside the Aangan. He went to the house, but P.W.5 did not saw any of the assailants. Therefore, there is complete lack of evidence and if the statement of P.W.5 and informant (P.W.6) is compared then it appears that P.W.6 had gone to the house of the deceased and saw the occurrence, but P.W.5 has not disclosed the name of the any person. The evidence of P.W.5 is significant in view of her specific assertion regarding time of occurrence i.e. of 8.00 P.M. and her husband was killed in the next morning meaning thereby on 11th or 12th January, 1981 and the dead body was found in Pandui River, but the dead body was found neither on 11th nor on 12th January, 1981, rather it was found in Pandui River on 17.01.1981. 11. Regarding culpability of any of the accused, the informant has stated that she has named the assailants on the basis of information supplied by the villagers. Therefore, P.W.5 has also not named any of the accused, rather she has said that she has given the names on the basis of information supplied by the villagers, but no such villagers came forward to say that they have stated about the names of any of the accused to PW.5. 12. If the evidence is analyzed, then it is apparent that neither seizure list nor inquest report have been brought on the record. 13. No doubt, the doctor P.W.9, who has conducted the post-mortem examination, has found ante-mortem injuries, but this itself it not sufficient to hold guilty to any of the accused. The prosecution was required to prove the role of the accused. If that is not done, then it can be held that the prosecution has failed to discharge its onus by not giving cogent and reliable evidence. The prosecution was required to prove the role of the accused. If that is not done, then it can be held that the prosecution has failed to discharge its onus by not giving cogent and reliable evidence. When majority of the witnesses, who were declared hostile then examination of I.O. was must and he could have been confronted with the evidence brought during trial. Therefore, non-examination of I.O. has definitely caused prejudice to the prosecution. The wife of the deceased (P.W.5) has contradicted herself either with regard to the time of occurrence or with regard to the date of recovery of dead body. Not only that, she does not name any of the accused in the capacity of her being eyewitness, rather, she named the accused on the basis of information supplied to her by the villagers, who either have come inside her Aangan soon after the occurrence or they named the accused persons, but none of such witnesses has been examined and the witnesses, who have been examined are P.Ws. 2, 3, 4, 6 and 8, but they have not named any of the accused. Therefore, it can be said that the sole testimony has been contradicted and it has not been corroborated at all. On the basis of such non-corroboration of such evidence, it is not prudent to hold that the prosecution case stands proved and in such circumstances, it would be highly improbable to rely upon the testimony of the sole witness. 14. In the background of the facts narrated above, it is apparent that the prosecution has not been able to prove the charge against the appellants at all. All the appellants are entitled to get the benefit of doubt. Accordingly, this appeal is allowed. The judgment of conviction and sentence is set aside and the appellants are acquitted from the charges. They are discharged from the liability of their bail bonds. 15. Smt. Rajani, Advocate appointed as Amicus Curiae has assisted this Court in this appeal and thus, she is entitled to get the prescribed fee from the Patna High Court Legal Services Committee. Let a copy of the first page and the last page of the judgment be given to her for needful. Appeal allowed.