Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 316 (PAT)

Ramayan Choudhary v. State of Bihar

2012-02-23

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT Shyam Kishore Sharma, J.:- The instant appeal has been preferred by Ramayan Choudhary and Jamuna Choudhary who have been convicted under Section 302 read with Section 34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life by the judgment and order dated 25.07.1989 passed by the learned 2nd Additional Sessions Judge, Siwan in Sessions Trial No.142/1984. 2. According to the fardbeyan (Ext.2) of Md. Israr Khan (not examined), S.I. of Nautan Police Station lodged on 17.04.1982. The prosecution case relates to the occurrence of the midnight of 16/17th of April, 1982. On 17.04.1982 in the morning at 7.00 A.M., when the informant S.I. Israr Khan (not examined) had gone to village Dewan Chak in connection with the investigation of another case i.e. Nautan P.S. Case No.68/1982 registered under Sections 394 and 412 of the I.P.C. which was instituted on the fardbeyan of Ramayan Choudhary alleging inter alia that in the night of 16/17th of April 1982 at about 00.30 A.M., he came to know that 3-4 thieves had entered in his house after removing the door plank from north facing house and three of the thieves entered into the room where the appellant Ramayan Choudhary was sleeping and picked up boxes and tried to escape. Sleep of Ramayan Choudhary was disturbed and he woke up and caught one of the thieves and there was a scuffle. In the meanwhile, Jamuna Choudhary, his uncle came there on Hulla and in order to get themselves rleased on the thieves assaulted them with lathi. One of the thieves, who was caught, took out dagger from his waist opened it with the help of his teeth and attempted to assault the said Ramayan Choudhary. However, the dagger was snatched by Ramayan Choudhary with the help of his uncle. On Hulla, the villagers arrived there and in the self defence, Ramayan Choudhary assaulted the apprehended thief namely, Rajeshwar Choudhary (deceased) by means of dagger. The dead body of Rajeshwar Choudhary was lying in the ‘Angan’ of Ramayan Choudhary. The aforesaid statement resulted into a case being Nautan P.S. Case No.70 dated 17.04.1982 under Section 304 of the I.P.C. After investigation, charge-sheet was submitted under Section 302 read with Section 34 of the I.P.C. and cognizance was accordingly taken. The case was triable by the court of sessions, so it was committed. The aforesaid statement resulted into a case being Nautan P.S. Case No.70 dated 17.04.1982 under Section 304 of the I.P.C. After investigation, charge-sheet was submitted under Section 302 read with Section 34 of the I.P.C. and cognizance was accordingly taken. The case was triable by the court of sessions, so it was committed. After appearance of the accused person, charges were framed and explained to them to which they pleaded their innocence and claimed to be tried. 3. The defence of the accused was of false implication at the behest of Israr Khan, S.I. and further defence is that in fact fardbeyan of accused Ramayan Choudhary was forged and fabricated and his signature was obtained without reading the contents of the fardbeyan. In fact, Rajeshwar Choudhary (deceased) had gone to commit adultery with sister of Ramayan Choudhary, appellant no.1 and when he was caught then scuffle resulted into the death of Rajeshwar Choudhary, who was already armed with dagger. 4. Before the trial court, the prosecution has examined 10 witnesses. They are namely, P.W.1 Ram Awadh Choudhary, P.W.2 Vindhyachal Choudhary, P.W.3 Niranjan Choudhary, P.W.4 Samrajia, P.W.5 Nagina Choudhary, P.W.6 Ganeshia, P.W.7, Kashi Choudhary, P.W.8 Sawaria Devi, P.W.9 Dr. H.B. Sahay and P.W.10 Amar Nath Sah. 5. P.W.1 is brother of the deceased. P.W.2 is cousin of the deceased. P.W.3 is the father of the deceased. P.W.4 is mother of the deceased. P.W.5 is cousin of the deceased. P.W.6 is Bhabhi of the deceased. P.W.7 is uncle of the deceased and P.W.8 is the sister of the deceased. P.W.7 has been tendered for cross-examination. 6. The trial court after hearing the argument and considering the evidence on the record, came to the opinion that the prosecution has been able to prove the charge against the appellants beyond shadow of all reasonable doubt and it was also observed that right of private defence was exceeded. 7. This Court is required to reappraise the evidence and to see as to whether the prosecution was able to prove the charges beyond shadow of all reasonable doubt. 8. P.W.9 Dr. H.B. Sahaye was posted as Civil Surgeon at Sadar Hospital, Siwan and on 18.04.1982 at about 11.00 A.M., he performed the post-mortem examination on the dead body of Rajeshwar Choudhary and found following ante-mortem injuries. (1) Incised punctured wound ¾” x ¼”x entering abdominal cavity below left costal margin. 8. P.W.9 Dr. H.B. Sahaye was posted as Civil Surgeon at Sadar Hospital, Siwan and on 18.04.1982 at about 11.00 A.M., he performed the post-mortem examination on the dead body of Rajeshwar Choudhary and found following ante-mortem injuries. (1) Incised punctured wound ¾” x ¼”x entering abdominal cavity below left costal margin. (2) Incised punctured wound 1” x ½” x entering abdominal cavity on right side of abdomen at the level of unleslicus. A portion of omenture was protruding through the wound. (3) Incised wound ½” x ¼” x ¼” on outer part of right arm in middle. (4) Incised punctured wound ½” x ¼” x entering thoracic cavity of left side of back below scapular region. (5) Incised wound ½” x ¼” x ¼” on back on left side. On opening the thoracic cavity blood was present in thoracic cavity left lung was punctured. On opening the abdominal cavity blood was present in abdominal cavity. Spleen was punctured. Time of death was between 24 to 48 hours from Post-mortem examination. Death was due to shock and haemorrhage as a result of above injuries. The death of Rajeshwar Choudhary on the date and time of occurrence by use of sharp cutting weapon has been established. 9. Now the oral evidence has to be discussed. 10. P.W.1, brother of the deceased, P.W.3 father of the deceased and P.W.6 Bhabhi of the deceased are the hearsay witnesses. P.W.2, cousin of the deceased is not a witness of the occurrence and he has stated that he is not a witness of the occurrence. P.W.4, mother of the deceased is also not a witness of the occurrence. P.W.5, the cousin of the deceased and P.W.8 sister of the deceased claimed themselves to be the eye witness of murder of Rajeshwar Choudhary. P.W.5 in his evidence has stated that he was examined by the police officer two days after the occurrence, whereas P.W.8 states that his examination by police officer was after three days of the occurrence. I.O. has not been examined and he could have explained as to what compelled him to record the evidence of the witnesses after 2 to 3 days. 11. Statement of the witnesses has to be recorded without any delay because delay creates several circumstances and situations and in the delay, some fabrication can be made out. I.O. has not been examined and he could have explained as to what compelled him to record the evidence of the witnesses after 2 to 3 days. 11. Statement of the witnesses has to be recorded without any delay because delay creates several circumstances and situations and in the delay, some fabrication can be made out. With this version, law mandates that statements of the witnesses should be taken by the Investigating Officer without unnecessary delay. When the Investigating Officer was at the place of occurrence, then it was for him to explain as to what prevented him in recording the statement of the witnesses, but unfortunately, the informant-cum-I.O. was not examined. All the witnesses have come out with the statement that Rajeshwar Choudhary had illicit relationship with Kunti, sister of appellant Ramayan Choudhary. There is also consistent evidence that Rajeshwar Choudhary has eloped with Kunti and had been to Punjab and after about a week, Kunti was taken back to her house by the accused Ramayan Choudhary. The prosecution witnesses have stated that Rajeshwar Choudhary was not a thief. The presence of Rajeshwar Choudhary in the house at about midnight is not in dispute, rather, the consistent case of the prosecution witnesses is that he was there in the night for committing adultery with Kunti. There was the purpose of Rajeshwar Choudhary being in the house of Ramayan for adultery, there is no answer. The answer was to be given by the prosecution. If, he had been to commit adultery and at that time, he was armed then the intention was upon him to ward of any other pressure. Arming with dagger is circumstance, which goes to show that purpose of Rajeshwar was not only to commit adultery, rather it was also that if any object to which then he could have it recourse to the estimate harm. The fardbeyan itself has based on the statement of Ramayan Choudhary, which was taken by the informant. Thus, the statement is basing upon the evidence of the accused and that statement has been utilized against the accused. The person taking statement of the accused has been withheld by the prosecution. 12. The evidence is that killing of Rajeshwar Choudhary was in the house of the appellants and time was just passed after the midnight. The evidence is also that at that time, Rajeshwar Choudhary was having dagger. The person taking statement of the accused has been withheld by the prosecution. 12. The evidence is that killing of Rajeshwar Choudhary was in the house of the appellants and time was just passed after the midnight. The evidence is also that at that time, Rajeshwar Choudhary was having dagger. He has tried to cause harm. While doing so, he could not succeed and the scuffle resulted into the assault to him which ultimately proved fatal. 13. Chapter IV of the Indian Penal Code prescribes general explanation. All the persons are liable to punishment if the offence is committed, but some circumstances have been kept aside and the right of private defence is also one of such circumstance which had been dealt with in Chapter IV of the I.P.C. Section 96 of the I.P.C. says that nothing is an offence which is done in the exercise of the right on private defence. An accused taking the plea of the right of private defence is not required to give call evidence, rather, he can rely upon the evidence of the prosecution witnesses and if the prosecution creates a situation from which inference can be drawn that the situation was as such in which the accused was having compelling circumstances or such provocation then in that case the assault is justified. No body will try to see that his sister is being ravished by a villager. According to the villager, she was already married lady. She was taken to Punjab. This was definitely a gross provocation. Even after Kunti was brought from Punjab then also Rajeshwar could not keep mum and he has tried to enter inside the house. This was grave provocation and the provocation was compounded when the Rajeshwar Choudhary tried to strike dagger blows. 14. Definitely that was the situation in which the accused persons had no opportunity at all to take recourse to commit such offence. Not only, right of private defence is available on the record but on the merit in the present case and on the basis of the deposition of the witnesses, it is apparent that all the witnesses are family members of the deceased. They are definitely interested witnesses. Various suggestions were given to them from which it appears that non-examination of I.O. definitely prejudiced the defence. The prosecution was not able to prove the charge framed against the accused persons. They are definitely interested witnesses. Various suggestions were given to them from which it appears that non-examination of I.O. definitely prejudiced the defence. The prosecution was not able to prove the charge framed against the accused persons. Non-examination of I.O.-cum-Informant has left many unanswered questions. Inquest report is not on the record. The I.O. could have explained as to why, it was withheld or where it was prepared. Even the case diary was not formally proved. The genesis of the case has not been explained and the contents have not been brought on the record. Therefore, on account of serious laches on behalf of the prosecution, it can be held that the prosecution failed to prove the charges. 15. 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 order of sentence is set aside and the appellants are acquitted from the charges. They are discharged from the liability of their bail bonds. Appeal allowed.