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2014 DIGILAW 684 (PAT)

Babloo Jha v. State of Bihar

2014-06-18

ANJANA PRAKASH, DHARNIDHAR JHA

body2014
JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) The present appeal is directed against the judgment of conviction dated 08.02.1991 by which the solitary appellant Babloo Jha was held guilty of committing offences under Sections 364 and 302 IPC and after being heard on sentence was directed to suffer rigorous imprisonment for life under section 302 IPC. In spite of the appellant having been convicted of offence under Section 364 IPC, no separate sentence was passed upon him on that count. 2. The case related to the murder of certain Dr. Maheshwar Prasad Choudhary who undisputedly was a medical practitioner, residing in Sarairanjan in the district of Samastipur as may appear from the evidence of his son (P.W.4) as also his wife (P.W.8). He had finally settled down in Sarairanjan and had a four room house which was enclosed by a boundary wall from four sides. 3. The prosecution allegation is that in the night at about 7 A.M. on 19.11.9186, the appellant Babloo Jha came there and requested the doctor to accompany him to his house to attend on his ailing brother who was being treated by one Ballu Jha who happened to be the compounder of the deceased doctor. The appellant is said to have given out to the doctor that there was no response to the treatment given by the said Ballu Jha and that he had asked him to bring the deceased for treating the ailing brother of the appellant. As per the prosecution story, the doctor asked the appellant to wait for a few minutes and he readied himself to attend on the ailing brother of the appellant. The deceased as per the prosecution story started his motorcycle with appellant Babloo Jha sitting as the pillion rider. After some time when the deceased had reached the main road, a couple of persons came to inform the informant, namely, Usha Chaudhary (P.W.8) wife of the deceased that Dr. Choudhary had been murdered. The family members rushed to the scene of occurrence. They found the dead body of the deceased doctor lying in a pool of blood. 4. After some time when the deceased had reached the main road, a couple of persons came to inform the informant, namely, Usha Chaudhary (P.W.8) wife of the deceased that Dr. Choudhary had been murdered. The family members rushed to the scene of occurrence. They found the dead body of the deceased doctor lying in a pool of blood. 4. As regards the motive of commission of the offence, it was stated that the appellant, happened to be the Sala of the said Ballu Jha, who was attached as a compounder to the doctor and was learning the art of compoundership from the deceased doctor, but on account of same misconduct, he had been turned out and, as such, the appellant was carrying a grudge and probably in order to avenging upon his humiliating expulsion from the training, he had killed the doctor. 5. The defence of the appellant was of innocence and non-participation as also on false implication on account of suspicion. 6. During the course of trial, the prosecution examined as many as twelve witnesses which included P.W.6 Sitabi Sah who was tendered for cross-examination as also P.W.7 Aganu Mahto who was declared hostile on account of having not supported the prosecution case. P.W.4 Ritesh Kumar Chaudhary was the son of the informant and, as we have noted earlier, P.W.8 Usha Chaudhary was the wife of the deceased doctor. The other witnesses, like, P.W.1 Diwakar Jha had stated that he had not seen the occurrence but had heard about killing of the doctor. P.W.2 Asharfi Prasad Singh had spoken on the motive part of the occurrence that Babloo Jha was learning compounder-ship under the aegis of the deceased doctor and that he was turned out one year prior to the occurrence. It was further stated by P.W.2 that the attitude of the appellant was not good towards the deceased doctor. P.W.3 Dr. Baikunth Prasad Sinha had held postmortem examination on the dead body of the deceased and had prepared the postmortem examination report (Ext-1). P.W.5 Ramashray Sah had also given the same evidence as was given by P.W.2 Asharfi Prasad Singh. P.W.9 Shibjee Sah gave evidence on the fact that he had seen the doctor going by his motorcycle and that the appellant Babloo Jha was sitting as a pillion rider on the motorcycle. P.W.10 Basudeo Sah had also given the same evidence as was given by P.W.9. P.W.9 Shibjee Sah gave evidence on the fact that he had seen the doctor going by his motorcycle and that the appellant Babloo Jha was sitting as a pillion rider on the motorcycle. P.W.10 Basudeo Sah had also given the same evidence as was given by P.W.9. P.W.11 Ramchandra Singh was the officer who had recorded the FIR (Ext-6) and testified to the fact that after recording the same he proceeded for investigating the offence and during that course he inspected the place of occurrence and examined the witnesses. He held inquest upon the dead body and sent the same for postmortem examination and after completing the investigation sent up the solitary accused Babloo Jha for his trial. P.W.12 was a witness of formal nature who had produced the Malkhana register showing the entries on receipt of material exhibits which were received by the officer-in-charge of the police station, like the cloths of the deceased, etc. 7. On considering the evidence of the above witnesses, the trial court passed the impugned judgment. 8. While arguing on behalf of the appellant, Smt. Sudha Ambastha, learned Amicus Curiae submitted that there are couple of witnesses who have stated on the motive part of the occurrence and four witnesses, including P.W.4 and P.W.8, i.e., the son and wife of the deceased have stated that they had seen the deceased doctor leaving his house by his motorcycle in the company of the appellant at his request for treating his ailing brother. Submission was that one of the witnesses states that it was the brother of the appellant who was ill while the other stated that it was his mother who required to be treated. Submission also was that accepting the evidence to be true on their face value, nothing beyond suspicion comes out as an inference and there is no evidence further to connect the appellant as author of the offence. 9. The learned Additional Public Prosecutor was vehemently countering the arguments of the learned Amicus Curiae by pointing out that one of the strongest circumstances appearing from the evidence was that the appellant being seen last in the company of the deceased and there was no explanation coming from him as to who could have committed the murder of the deceased. 10. 10. Before be advert to the rival contentions, we simply want to point out that there is no direct evidence as to who could have committed the offence. The only evidence was that the appellant came and requested the deceased doctor to accompany him to his house for treating his ailing brother who was being treated by Ballu Jha who happened to be the Bahnoi of the appellant and was working as compounder of the deceased doctor. The evidence further indicates that the doctor acceded to the request of the appellant in spite of some resistance from his family members as appears from the evidence of P.Ws.4 and 8 and left his house by his motorcycle. After some times or just after leaving his house or after he had reached the pucca road, the news of his murder was conveyed to his family members. Thus, what appears is that the evidence is only of being seen last in the company of the deceased. 11. It is a case based upon the chain of circumstances on the commission of the offence and, as such, the first enquiry which we have launched ourselves upon was as to whether the motive was as strong as to eliminate the doctor by giving brutally multiple blows to him on such vital parts of his body, like, the thoracic cavity, inter costal spaces, back part of his body just below the left specula or the back part of the chest and somewhere on the upper side of his waist. If one could have a deeper forensic glance of the description of each of five injuries and further a glance of the evidence on the dissection part of the dead body, then one could find that each injury was as decisive a blow as it could have individually been fatal in the ordinary course of nature. 12. The motive was that the appellant had been working in the clinic of the deceased doctor and was learning the art of compoundership under him. The allegation was that the appellant had indulged into some misbehaviour or misconduct. To put down the exact word which has been stated by P.W.4, the appellant had been found by the doctor having indulged in to Awaragardi. The allegation was that the appellant had indulged into some misbehaviour or misconduct. To put down the exact word which has been stated by P.W.4, the appellant had been found by the doctor having indulged in to Awaragardi. The word could have many meanings and considering that it could be misconduct of worst type, the strong was that the appellant had been turned out from the clinic of the doctor on that account that he was nursing grudge and a deep sense of vengeance against the doctor. As may appear from the evidence of witnesses the appellant had been turned out one year prior to the incident. There is no evidence that anything had happened in between or the appellant had even spoken anything which could be conveying the deep sense of hatred and an inner urge of taking revenge which had arisen from the humiliation of the appellant by the deceased. It was after one year of the expulsion of the appellant from the clinic of the doctor that he was alleged having killed the deceased doctor. There appears a lack of proximity between the act of expulsion of the appellant from the clinic of the doctor and the incident. Apart from that what we find is that one of the most competent persons, like, P.W.4 who was the son of the deceased did not speak a single word that indeed there was any incident either of the appellant having indulged into any misconduct or of the resultant action taken by the deceased-doctor of expelling him from his clink. The witnesses other than P.Ws.4 and 8 who had come forward to depose on the motive part of the incident were persons who could not have much concern about the affairs of the doctor as regards running his clinic and training some one as a compounder. We find ourselves very reluctant to act upon the motive for these two reasons, i.e., the distance of time in between the expulsion and the murder and secondly, the nature of the evidence which never inspired our confidence. 13. The other part of the evidence is that on being requested by the appellant, Dr. Chaudhary readied himself, pulled out his motorcycle from his house and then drove away with the appellant sitting as a pillion rider. 13. The other part of the evidence is that on being requested by the appellant, Dr. Chaudhary readied himself, pulled out his motorcycle from his house and then drove away with the appellant sitting as a pillion rider. P.W.4 and P.W.8, the son and wife of the deceased doctor would say that they had asked the doctor not to go in the night for attending to the call, but he insisted upon it and finally emitted from his house. One of the witnesses stated that he was asked by the doctor to accompany him, but he stated that there was no room for him to sit on the motorcycle and further that he was already being accompanied by the appellant. There is no evidence further from that stage. Thus, what appears from the evidence is that it was the appellant who was the only person accompanying him and it appears that there was no explanation coming from him as to how the deceased happened to be killed. We have looked to the statement of the appellant recorded under Section 313 Cr.P.C and we find that the learned trial Judge had used the circumstance of not putting forth an explanation as to who was the person who had killed the doctor or how the doctor had been killed and by whom, but no such question was put to him during his questioning under Section 313 Cr.P.C. In addition to this serious flaw what appears to us is that the only evidence is of having last seen the doctor in the company of the appellant. We want to recall the position of law that the evidence of last seen is the weakest of circumstances and that circumstance in itself could never be safe to be treated as conclusive as to hold an accused guilty of committing an offence. 14. The appellant had denied to have come to the house of the doctor to request him to attend on his ailing brother but it appears from the findings recorded by the court below that the request was for treating his mother. The investigating officer also stated that during the course of investigation and just after the murder of the doctor, he went to the house of the appellant and found his mother hail and hearty. The investigating officer also stated that during the course of investigation and just after the murder of the doctor, he went to the house of the appellant and found his mother hail and hearty. If there could be conflict story coming on the very purpose for which the doctor was requested to accompany the appellant, there remains a serious doubt that the appellant had ever gone to the house of the doctor. 15. These are some of the findings we arrive at after considering the evidence of the witnesses and we find that the allegations probably were flowing from an apriori suspicion which was entertained by the family members of the deceased and it could not be said with certainty and affirmness that the charges had been proved by the evidence which was adduced by the prosecution. In our opinion, it was a case in which the charges had not been proved which entitled the appellant to acquittal. 16. In the result, the appeal succeeds. The judgment of conviction and the order of sentence passed upon the appellant are hereby set aside. The appellant is on bail. He shall stand discharged from the liabilities of his bail bonds. 17. Let Smt. Sudha Ambastha, the learned Amicus Curiae be paid one fee of hearing by the High Court Legal Service Committee and for that purposes, let the first and last pages of the present judgment be made over to her.