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2012 DIGILAW 303 (PAT)

Bhola Tiwary v. State of Bihar

2012-02-22

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT SHYAM KISHORE SHARMA, J. - Sole appellant Bhola Tiwary has filed this appeal against the judgment dated 29th August, 1989 passed by 3rd Additional Sessions Judge, East Champaran Motihari in Sessions Trial No. 172 of 1981/240 of 1987 convicting the appellant under Section 302 of the Indian Penal Code and sentencing him thereunder to undergo rigorous imprisonment for life and acquitting one another accused Ram Bharosh Pandey Of the charge. 2. The occurrence of the night of 2/3.05.1979 was reported to Police by one Chaukidar Sarju Raut (P.W.7) and his statement was recorded by Assistant Sub-Inspector of Police, Kesaria Police Station (not examined) wherein he has named this appellant, Ram Bharosh Pandey and one unknown. According to F.I.R., when the informant returned his home after performing his duty on 03.05.1979 at 9.00 A.M. the Bhagina (not examined) of Ramrup Choudhary informed him that somebody has killed his Mama by cutting his neck while he was sleeping. According to informant (Chaukidar P.W.7), he went to the house of Ramrup Choudhary and found him dead in the verandah. His neck was cut and blood scattered near him. The mother of the deceased Jhalo Kuwar (P.W.3) and his sister (not examined) were weeping and on query from deceased’s mother (P.W.3) as to how Ramrup Choudhary died, then she replied that the appellant Bhola Tiwary who was her son-in-law and co-accused Ram Bharosh Pandey who was her Bhagin Damad have killed him. She also named one another unknown person but she claimed to identify him on being shown. The motive behind the occurrence was of litigation between the deceased and co-accused Ram Bharosh Pandey (since acquitted) as later had instituted a suit against the deceased claiming share in the land in village Jasauli but the suit was dismissed. The appellant Bhola Tiwary wanted to take forceful possession of his share in the land. Both the named accused threatened Ramrup Choudhary of dire consequences. The mother of the deceased Jhalo Kuwar (P.W.3) narrated the occurrence as an eye witness and also alleged that the Ramrup Choudhary was killed by aforesaid two persons. P.W.7 Sarju Raut asked P.W.3 Jhalo Kuwar to come to police station to inform the police but she expressed her inability on account of grief which she was facing at that time. P.W.7 came to the police station and reported the matter. P.W.7 Sarju Raut asked P.W.3 Jhalo Kuwar to come to police station to inform the police but she expressed her inability on account of grief which she was facing at that time. P.W.7 came to the police station and reported the matter. His fardbeyan (Ext.3) resulted in Kesaria P.S.Case No.5 of 1979 under Section 302 of the Indian Penal Code. The allegation was investigated into and after completion of investigation, chargesheet was submitted against appellant Bhola Tiwary and one Ram Bharosh Pandey. Cognizance was taken and the case was committed to the court of sessions where charges were framed and explained to the accused persons. They pleaded innocence and preferred to face trial. 3. The defence of the accused persons was of false implication on account of enmity which was going on for land dispute. 4. On behalf of the prosecution, eight witnesses were examined. No defence witness was examined. The prosecution witnesses are : P.W.1 Sukhdeo Prasad Singh, P.W.2 Ganesh Singh, P.W.3 Jhalo Kuwar, P.W.4 Raja Singh, P.W.5 Dr.H.K.P.Verma, P.W.6 Bishwanath Singh, P.W.7 Sarju Raut and P.W.8 Dharam Nath Tiwary. 5. P.W.3 Jhalo Kuwar is the mother of the deceased and is only eye witness. P.W.7 is village Chaukidar who had informed the police about the occurrence. P.W.5 has held post mortem over the dead body of the deceased. P.W.8 is a formal witness and has proved the inquest report as Ext.4. P.Ws. 1, 2, 4 and 6 are not eye witnesses of the occurrence, rather they have arrived at the place of occurrence on cry of Jhalo Kuwar after occurrence. 6. The trial court after considering the evidences on record and after hearing learned counsel for the parties came to the conclusion that the prosecution has been able to prove the charge against the appellant only beyond the shadow of all reasonable doubts and hence passed the judgment, as mentioned above. 7. This Court is required to reappraise the evidences on record and to see whether the materials available on record are enough to justify the conviction and sentence of the appellant or not. 8. P.W.3 Jhalo Kuwar is the only eye witness. According to her evidence, she had two sons namely, Anirudh Choudhary and the deceased Ramrup Choudhary. 7. This Court is required to reappraise the evidences on record and to see whether the materials available on record are enough to justify the conviction and sentence of the appellant or not. 8. P.W.3 Jhalo Kuwar is the only eye witness. According to her evidence, she had two sons namely, Anirudh Choudhary and the deceased Ramrup Choudhary. At the time of occurrence she was living with her younger son Ramrup Choudhary who was separate from his brother Anirudh Choudhary and at the time of occurrence he was unmarried. Ram Singari, daughter of this witness P.W.3 was married to appellant Bhola Tiwary. Janak Ojha was brother of this witness P.W.3 who has given land to his sister in village Jasauli. The appellant and Ram Bharosh Choudhary were demanding the shares in the land but deceased Ramrup Choudhary was not willing to give share to them. Co-accused Ram Bharosh Pandey had filed a case against the deceased to `have share in the suit land but he lost the case. This witness further states that since appellant and co-accused Ram Bharosh Pandey did not get share in the land, they were annoyed and 8 to 10 days prior to the occurrence, the appellant had taken up the matter before the Panches and had stated that he would not allow Ramrupn Choudhary to live. This witness has further stated that after 4 to 5 days of panchaiti, in early morning, she was cleaning her open darwaza west of her room and at that time earthen light was burning at the chaukhat of her house and Ramrup Choudhary was sleeping by placing his head on Chaukhat on a mat and his legs were towards west and head was towards east. From the place where this witness was cleaning the face of the deceased was visible and there was angan in the house in the west of said varanda and the angan is faced from north and from west. She had become a bit drowsy and when she heard the noise of assault by garasi she opened her eyes and saw towards his son. She could not see the first assault upon the deceased but she saw second and third assault by garasi which has been attributed to the appellant. The accused persons were armed with garasi. She had become a bit drowsy and when she heard the noise of assault by garasi she opened her eyes and saw towards his son. She could not see the first assault upon the deceased but she saw second and third assault by garasi which has been attributed to the appellant. The accused persons were armed with garasi. This witness has stated that before two blows, Ramrup Choudhary had given a blow on the left side of his neck. She claimed to have seen one person pressing Ramrup Choudhary and one another person was standing at a distance of 6 yards from the deceased Ramrup Choudhary. On hulla being raised by this witness, the appellant along with other two persons fled away. Thereafter Bishwanath Singh (P.W.6), Chaukidar Sarju Raut (P.W.7),Sukhdeo Singh (P.W.1), Ganesh Singh (P.W.2) and Raja Singh (P.W.4) and one Bharat Singh (not examined) reached at the place of occurrence and this witness narrated them about the occurrence. 9. P.W.3 in her cross-examination has stated that her daughter-in-law who is wife of another son was sleeping in another room had come at the place of occurrence after the occurrence occurred. The daughter-in-law of this witness has not been examined as her examination has been obstructed by the prosecution because she was not a natural witness who immediately could have perceived a matter in right perspective. Not only that, the matter was not informed to his elder son Anirudh Choudhary who was in service at Muzaffarpur but he had come after about 4 to 5 days of the occurrence. P.W.3 in paragraph 18 of her cross-examination has stated that there were 6 to 7 houses in the vicinity of her house. Those houses are of Mohan Giri, Binda Giri, Paras Singh and Raja Singh but only Raja Singh has been examined as P.W.4. In paragraph 21, this witness has stated that she had raised hulla when appellant was prepared to attack 2nd and 3rd garasi blow on the deceased but this statement is in contradiction of her evidence in paragraph 2 of her examination-in-chief wherein she has stated that after hulla 3rd blow was given by the appellant to the deceased. In paragraph 21, this witness has stated that she had raised hulla when appellant was prepared to attack 2nd and 3rd garasi blow on the deceased but this statement is in contradiction of her evidence in paragraph 2 of her examination-in-chief wherein she has stated that after hulla 3rd blow was given by the appellant to the deceased. This witness has stated that the Investigating Officer had visited the place of occurrence but in paragraph 23 she has stated as to the existence of Dibiya meaning thereby the earthen light but she could not say whether the Dibiya was produced before the Investigating Officer or not. In paragraph 25 this witness has stated that the appellant had not concealed his identity. 10. P.W.5 has conducted the post mortem over the dead body of the deceased on 4.5.1979 at 10 A.M. and found following incised wound at three places on the left side of neck of the following dimention 4”x2”x2”, 3”x2”x1/2” and 2”X4”X1½” cutting through muscle bone and the large blood vessel of the neck leading heavy blood loss. The injuries so found had been caused by sharp cutting weapon such as Garasi. According to the doctor, the death was on account of shock and haemorrhage due to aforesaid injuries and the time of death was about 36 hours. 11. According to prosecution version, the occurrence took place on 02.05.1979 but the post mortem was done on 04.05.1979 at 10 A.M. and the death is within 36 hours. Therefore, the homicidal death on account of injuries received by the deceased due to sharp cutting weapon stands proved. The death by sharp cutting weapon is not in dispute, rather implication of the appellant has been disputed and the said dispute is on account of enmity. 12. One fact that has come in the evidence of P.W.3 is that 8 to 10 days prior to the occurrence, the appellant has stated before the Panches since deceased was not ready to part with his share in the land of village Jasauli that he would not allow Ramrup Choudhary to survive for 8 to 10 days. Therefore, the motive of occurrence was in course of panchaiti. The motive of the occurrence was required to be investigated. For that the examination of Panches as prosecution witnesses was essential. None of the panches has been examined on behalf of the prosecution. Therefore, the motive of occurrence was in course of panchaiti. The motive of the occurrence was required to be investigated. For that the examination of Panches as prosecution witnesses was essential. None of the panches has been examined on behalf of the prosecution. Other witnesses are hearsay but the Investigating Officer has not been examined. The Investigating Officer could have clarified the place of occurrence. He could have explained as to whether it was possible for P.W.3 to see the place of assault or not. The evidence is that blood clot was found at the place of occurrence but the distance between the place from where P.W.3 was sitting and the place where murder was committed has not been explained due to non-examination of the Investigating Officer. This could have been the very good defence of the accused and he could have taken the plea that from the place where P.W.3 was sitting was not possible to see the place where offence was committed. Non-examination of the Investigating Officer is not always fatal but when the prosecution places reliance upon the testimony of sole witness, then it is required that his evidence remains intact. 13. The first version which was received by P.W.7 was that the murder was committed and that information was given through Bhagina of the deceased but that person has not been examined. If the prosecution places reliance upon the testimony of sole witness then it has to see that such evidence remains intact and that corroboration could have been made from official witnesses namely, the Investigating Officer and the doctor. The doctor in the present case has proved the case of culpable homicide but non-examination of the Investigating Officer has left many unanswered questions which were to be explained. The place of occurrence, distance between the place where P.W.3 was sitting and the place where the offence was committed, source of light, first information received by P.W.7 and exonerating another person from the liability are the defence which could not be turned down and if the close scrutiny of the evidence is taken into account, then it is apparent that the prosecution has lacked in its duty in proving its case beyond the shadow of all reasonable doubts. Thus, there is no evidence on the record to justify the conviction and sentence of the appellant. Hence, he deserves to be acquitted of the charge. 14. Thus, there is no evidence on the record to justify the conviction and sentence of the appellant. Hence, he deserves to be acquitted of the charge. 14. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellant is acquitted of the charge and is discharged from the liability of his bail bonds. 15. As none was appearing on behalf of the appellant, Mr.Shailendra Kumar Jha, Advocate was appointed as Amicus Curiae to assist the court on behalf of the appellant and he has argued well. We appreciate the assistance given by Mr.Shailendra Kumar Jha, Advocate. 16. Let first page and last page of the judgment be given to Mr.Jha, so that he may get his prescribed fee from the High Court Legal Services Committee, Patna. Appeal allowed.