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2012 DIGILAW 653 (PAT)

Subhag Koeri v. State of Bihar

2012-04-20

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT (ORAL) Per S.K. SHARMA, J.:- Subhag Keori, Shri Ram Koeri, Madan Ahir and Balister Awadhia have challenged the judgment and order dated 8.12.1989 passed in Sessions Trial No.325 of 1982 by the learned Sessions Judge, Gopalganj convicting all the four appellants under Section 302/34 and sentencing each of them to undergo rigorous imprisonment for life and further convicting them under Section 201/34 and 379 of the I.P.C. and sentencing each of them to undergo rigorous imprisonment for three years under each of the sections and further convicting the appellant Subhag Koeri under Section 364 of the I.P.C. and sentencing him to undergo rigorous imprisonment for four years and it was ordered that all the sentences of all the appellants to run concurrently. 2. According to the informant (P.W.5), in the night between 15-16.05.1981 while he was sleeping in his Dalan in village Khem Matihania, his daughter Subhasini (deceased) was sleeping inside the house. In the morning, the informant’s wife informed him that Subhasini was missing. The informant tried to locate her, but could not get any trace. When he returned after search, his villager P.W.3 Rajdhari and P.W.2 Barhu Koeri told him that they had seen Subhasin going with appellant Subhag Koeri and Manu Koeri. The written information given by the informant resulted into formal FIR (Ext.2) of Kuchaikote P.S. Case No.43 dated 15.05.1981/ G.R.No.480/81. The written report has not been brought on the record and only signature of the informant has been proved by the prosecution, which has been marked as Ext.1. The case was registered only under Section 363 of the I.P.C., but in course of investigation, Manu Koeri was apprehended on third day of the occurrence. The dead body of Subhasini was recovered from the well on the alleged confession given by Manu Koeri before the police. By order dated 28.05.1981, Section 302 of the I.P.C. was added. The dead body of Subhasini was identified by the informant. The investigating Officer prepared a seizure list (Ext.3). The post-mortem report (Ext.4) was obtained though inquest report was made, but has not been brought on the record. After completion of the investigation, charge-sheet was submitted. The case was committed to the court of sessions where charge under Sections 302/34, 201/34 and 379/34 of the I.P.C. was explained against these appellants and Manu Koeri. The post-mortem report (Ext.4) was obtained though inquest report was made, but has not been brought on the record. After completion of the investigation, charge-sheet was submitted. The case was committed to the court of sessions where charge under Sections 302/34, 201/34 and 379/34 of the I.P.C. was explained against these appellants and Manu Koeri. Charge under Section 364 of the I.P.C. was framed against the appellant Subhag Keori and Manu Koeri. Manu Koeri took a plea that he was juvenile and so his case was separated from the court of sessions, which was transferred to the Juvenile Court vide order dated 12.09.1986. As the appellants pleaded innocence, so the trial proceeded. 3. The defence of the appellants was that Manu Koeri was having very intimate relationship with Subhasini (deceased). This was not tolerated by the informant and his persons and so they killed her and implicated others in the false case. 4. The Trial Court after considering the evidence of the prosecution came to the opinion that the prosecution has succeeded in proving the charges against the appellants, so the judgment of conviction and order of sentence has been passed. 5. This Court is required to see as to whether the prosecution has succeeded in giving the reasonable evidence on the record and whether those evidences led to only its conclusion that it was the appellants and appellants alone and non-else, who committed crime. 6. In order to establish its case, the prosecution has examined P.W.1 Jang Bahadur Prasad, P.W.2 Barhu Prasad, P.W.3 Raj Dhari Singh, P.W.4 Feni Prasad, P.W.5 Ram Autar Prasad (informant), P.W.6 Jai Prakash Srivastava (I.O.) and P.W.7 Dr. Lakhichand Prasad. 7. The defence has examined D.W.1 Bharath Prasad on the question of enmity between the informant and Subhag Koeri and D.W.2 Kamla Prasad was a Judicial Magistrate, who had occasioned to record the statement under Section 164 Cr.P.C. of Manu Koeri. The death of Subhasini at the alleged time is not disputed. 8. The doctor (P.W.7) was posted on 19.05.1981 at Sadar Hospital, Gopalganj as Medical Officer and on that date at 10.00 A.M. he held post-mortem examination upon the dead body of deceased Subhasini, daughter of the informant, which was identified by Constable No.50, Bibhishan Ram, Chaukidar and the informant. The dead body was in the stage of decomposition. No sign of external injury was found. The dead body was in the stage of decomposition. No sign of external injury was found. Death was due to injury on the chest leading to fracture of ribs and injury to right lung, which lead to haemorrhage and shock, which could have been caused by pressing chest and by putting hard and blunt substance. Time elapsed since death was within 3-4 days of the occurrence. Therefore, the death of Subhasini almost on the time given by the prosecution stands established and it has not been challenged by the defence. Once the death is proved and established the prosecution case then the evidence is that the accused persons was responsible for causing culpable homicidal death not amounting to murder. 9. To buttress its case, the prosecution has examined four material witnesses. P.W.4 is the witness of the recovery of the dead body. He is not the material witness. He has deposed that he signed upon the paper prepared by Officer-in-charge. Therefore, the evidence of this witness namely P.W.4 is only to the extent that dead body of Subhasini was recovered. P.W.1 Jang Bahadur Prasad has stated that at about 11. P.M., he was inside in Khalihan. At that time, he has seen Balister Awadhia, Madan Ahir and Shri Ram Koeri. This witness has not named Manu Koeri and Subhag Koeri. The evidence of this witness is only that they were going east. P.W.1 was present in connection with harvesting or in his agricultural work. The evidence of P.W.1 does not incorporate any accused. He is a chance witness and much reliance cannot be given upon the evidence. 10. P.W.2 has stated that he was acquainted with informant and his daughter. According to his deposition, he has seen Subhasini (deceased) with Manu and Subhag and the identification was at the midnight. In the next morning i.e. in the morning of 16th May, 1981, this witness told the informant that he has seen Subhag and Manu going with deceased. Subsequently, the dead body of deceased was found. 11. Deposition of P.W.3 is the similar to the deposition of P.W.2. He has stated that the deceased was not a correct lady. He has stated that he met with the informant and told him about the occurrence. Subsequently, the dead body of deceased was found. 11. Deposition of P.W.3 is the similar to the deposition of P.W.2. He has stated that the deceased was not a correct lady. He has stated that he met with the informant and told him about the occurrence. The conduct of P.W.2 and P.W.3 in keeping mum for the whole night when they were seen the informant’s daughter going with two strangers in the night creates suspicion. The occurrence is in the rural area where mixing of lady with male is abandoned. When such mixing was noticed in the night then it will remain in the minds of the witnesses they will not wait till arrival of the informant, rather, they will voluntarily state such occurrence immediately. Such occurrence is unseen and they were on litigating terms with the accused. But it is surprising that they kept mum and informed the informant only on the next day. Even according to P.W.2 and P.W.3, they have seen the appellant Subhag and Manu and not appellants Sri Ram Keori, Madan Ahir and Balister Awadhia. These two witnesses are also chance witnesses. According to them, instantly they had occasioned to see the victim with two persons. Informant is the witness of the occurrence. On the statement of P.W.2 and P.W.3, who are also chance witnesses and their conduct of giving such information after such a long time, creates doubt as to whether they have seen the occurrence or not. 12. The prosecution has made out a case that on the confession of Manu, the dead body was recovered and Manu in his confession has named the appellants herein. Manu has given statement during investigation under Section 164 Cr.P.C. that was at the behest of the prosecution. The prosecution has withheld the information and had not been brought on record the statement under Section 164 Cr.P.C. of Manu, but it has come on the record through D.W.2, who was the Judicial Magistrate and who had occasioned to record the statement under Section 164 Cr.P.C. The statement under Section 164 Cr.P.C. gives wrong version of the occurrence by Manu when he gave altogether different version. In the said statement Manu has stated that he was going with deceased for Gopalganj court for marriage as both were having love affairs. In the way, 4-5 persons Manu and deceased were caught and they were thrashed. In the said statement Manu has stated that he was going with deceased for Gopalganj court for marriage as both were having love affairs. In the way, 4-5 persons Manu and deceased were caught and they were thrashed. He has further stated that deceased was threatened by the side of the informant. He has named P.W.2, P.W.3, the informant and others. Therefore, there are two versions of the confession of Manu on the record. One version is his statement under Section 161 Cr.P.C. and another version is his statement under Section 164 Cr.P.C. His statement under Section 164 Cr.P.C. is not of own statement, rather it is behest of the prosecution. 13. The learned counsel appearing on behalf of the informant has submitted that statement of Manu under Section 164 Cr.P.C. was recorded after the same was in police custody. There were all possibilities that he might have got his version at the behest of enemy and so this cannot be relied upon. 14. If there are two versions on the record, one under Section 161 Cr.P.C. and another under Section 164 Cr.P.C., then both have to be read in context of the whole case. The prosecution case suffers from many latches. The inquest report of the dead body should have been brought on the record. There is evidence that inquest was prepared, but it has not been brought on the record and there is no explanation as to why it has not been brought on the record. A question was put to the I.O. as to whether blood was found at the place of occurrence. The I.O. has replied in negative. The inquest report would have clarified. 15. To some extent, the manner of physical status of the dead body when it was found by the I.O. None being inquest report on the record is a circumstance, which closed the prosecution. The present case has been instituted on the basis of written report bearing the signature of the informant and that written report has not been proved and surprisingly only signature has been proved. P.W.4 in the first paragraph of his evidence has described the manner of scribing of the written report wherein it has been stated that his statements were noted by the Officer-in-charge and it was read over to the informant and when the informant found it correct, then he put his signature. P.W.4 in the first paragraph of his evidence has described the manner of scribing of the written report wherein it has been stated that his statements were noted by the Officer-in-charge and it was read over to the informant and when the informant found it correct, then he put his signature. Therefore, the evidence of informant P.W.5 in para 1 is that the written report was prepared by the Officer-in-charge. The officer-in-charge P.W.6 was confronted with his statement of informant and but he in para 7 has stated that it was not written in his presence, rather it was brought written. The existence of written report is doubted, but manner in which it was drafted for written are different and contradictory. The existence of written report is not a doubt but the written report has not legally brought on the record and it has come in the evidence that the author of the written report has not been established. The prosecution could not prove as to who is the author of the written report, which led to the institution of the case. 16. The evidence against Manu was specific and the dead body was recovered on his confession, but Manu is not appellant here and implication of the other accused is on the basis of confession of Manu and deposition of P.Ws. 1, 2, 3 and 5. 17. If the case is based on circumstantial evidence, then onus comes upon the prosecution to prove that all the circumstances led to only hypothesis that the offence was committed by the accused and accused alone. If the hypothesis could be found then such evidence cannot be held to be sufficient, which can lead to conviction of the accused. 18. Considering the evidence on record, we find and hold that the prosecution has failed to substantiate its case beyond all reasonable doubts. The appellants are entitled to get the benefit of doubts. Accordingly, the impugned judgment of conviction and sentence is set aside. The appellants are acquitted by giving them the benefit of doubts. They are discharged from the liabilities of their bail bonds. 19. In the result, this appeal is allowed. Appeal allowed.