Research › Search › Judgment

Jharkhand High Court · body

2016 DIGILAW 599 (JHR)

Kripanath Choudhary v. State of Jharkhand

2016-04-12

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : D.N. Upadhyay, J. These criminal appeals have been directed against the judgment of conviction and order of sentence dated 31.07.2003 and 01.08.2003 respectively passed by the Addl. Sessions Judge, Fast Track Court No. II, Palamau at Daltonganj in connection with Sessions Trial No.30 of 1995 corresponding to G.R. Case No. 1316 of 1993 arising out of Palamau, Sadar P.S. Case No. 341 of 1993 whereby the appellants have been held guilty for the offence punishable under Section 302/149 of the Indian Penal Code and sentenced to undergo R.I. for life. 2. The facts, in brief, as it appears from the fardbeyan of Bishwanath Chaudhary recorded on 19.09.1993 at 23 hours are that on the same day at about 7.30 p.m. the informant was attracted towards his brother Vijay Kant Chaudhary who had been shouting for help. When the informant ran to the place known as Tinpati More, he saw the appellants and their associates causing assault to Vijay Kant Chaudhary by means of Garasa, lathi, Kulhari etc. The informant also raised alarm which attracted other witnesses namely Surya Nath Chaudhary and Baij Nath Chaudhary who also reached to the place. It is disclosed that after causing assault to Vijay Kant Chaudhary, accused persons named in the F.I.R. took him to the house of appellant Ramdeo Chaudhary and after keeping the dead body in the room they put lock and fled away. The reason behind the occurrence is old dispute prevailing between the parties. 3. On the basis of fardbeyan of Bishwa Nath Chaudhary Palamau, Sadar P.S. Case No.341 of 1993 dated 19.09.1993 under Section 147, 148, 149, 341, 342 and 302 of the Indian Penal Code was registered. After due investigation chargesheet was submitted against the appellants and accordingly, cognizance was taken and the case was committed to the court of sessions and registered as S.T. No.30 of 1995. 4. All the seven appellants were put on trial and charges were framed against them under Sections 147, 302/149 and 148 of the Indian Penal Code. To substantiate the charges, the prosecution has examined altogether ten witnesses and proved documents like post mortem report, fardbeyan and formal F.I.R. Learned trial judge, placing reliance on the documents and evidence, held the appellants guilty for the offence punishable under Section 302/149 of the Indian Penal Code and inflicted sentence as indicated above. 5. Appellant Ramdeo Chaudhary in Cr. To substantiate the charges, the prosecution has examined altogether ten witnesses and proved documents like post mortem report, fardbeyan and formal F.I.R. Learned trial judge, placing reliance on the documents and evidence, held the appellants guilty for the offence punishable under Section 302/149 of the Indian Penal Code and inflicted sentence as indicated above. 5. Appellant Ramdeo Chaudhary in Cr. Appeal (DB) No.1197 of 2003 died during pendency of this appeal and therefore, Cr. Appeal (DB) No.1197 of 2003 stands abated. 6. Appellant Dinanath Chaudhry in Cr. Appeal (DB) No.1272 of 2003 also died and therefore, appeal as against him also stands abated. 7. Learned counsel appearing in Cr. Appeal (DB) No.1272 of 2003 has submitted that PW1 to PW4 and PW8 have projected themselves as eye witnesses but they have not given true picture of the occurrence. There are contradictions in their statement on the point of manner of occurrence as well as on the point of place of occurrence. It is submitted that appellants have been convicted under Section 302 with the aid of Section 149 of the Indian Penal Code but all the witnesses are silent as to how and when the offence commenced. They are also silent on the point as to from where the appellants appeared armed with deadly weapons like Garasa, Kulhari, Lathi etc. The prosecution story is completely silent on the point as to when and where the unlawful assembly was formed by the appellants. The story brought on record by the informant speaks that he heard voice of deceased who was shouting for help. At this juncture, it is to be kept in mind that place of occurrence is not lonely one rather it is surrounded by houses, there was Rasta and some village shops were also situated. Sati Devi PW3 happens to be wife of the deceased and she has stated that her husband Vijay Kant Chaudhary had left home to have tobacco. It is also disclosed by the witnesses that Tinpati More, alleged place of occurrence, is situated hardly at a distance of 50 feet from the house of deceased. If it was so, the movement of appellants was well within the view of the witnesses but they have not introduced the prosecution story in that manner. It is also disclosed by the witnesses that Tinpati More, alleged place of occurrence, is situated hardly at a distance of 50 feet from the house of deceased. If it was so, the movement of appellants was well within the view of the witnesses but they have not introduced the prosecution story in that manner. The story brought on record by the prosecution witnesses suggest that the place and position of deceased at the time of occurrence was not visible to them. Considering all these aspects, it could well be said that they have not witnessed the occurrence rather they could learn about the murder of Vijay Kant Chaudhary later. Learned counsel has further submitted that there was no purpose of keeping the dead body in the house of Ramdeo Chaudhary and that too under lock. If the witnesses had actually been witnessing the occurrence, they could have resisted the appellants or at least protest by them was expected to be made against keeping the dead body under lock in the house of Ramdeo Chaudhary. The conduct of the witnesses in this regard does not appear to be genuine and acceptable. The prosecution story brought on record by aforesaid five eye witnesses does not appear to be believable one for the reasons: (i) The witnesses are silent as to from where and from which place the appellants suddenly appeared and started causing assault to the deceased. (ii) The movement of the deceased at that point of time did not appear to be of routine one because PW3 has stated that the deceased had casually left home for enjoying tobacco. (iii) It is not a case that the appellants were in ambush or they suddenly appeared from their hide out to commit murder. (iv) They have stated that all the accused persons who were eight in number as per the fardbeyan, caused assault to the deceased by their respective weapons which they were holding but the doctor PW10 has found only three injuries on the person of deceased. Therefore, true picture of the occurrence has not been brought on record and aforesaid five eye witnesses have not disclosed the truth behind the occurrence. Therefore, true picture of the occurrence has not been brought on record and aforesaid five eye witnesses have not disclosed the truth behind the occurrence. During trial, the witnesses have confined the allegation against two of the appellants namely Ghosh Chaudhary and Kripanath Chaudhary and they have started levelling allegations only against these two and they have said appellant Kripanath by means of Garasa whereas appellant Ghosh Chaudhary by means of Kulhari caused assault. It is submitted that the prosecution witnesses have failed to prove that there was an unlawful assembly of which these three appellants were member and they were present to share the common object of said unlawful assembly. It is also not clear from the evidence that these three appellants were knowing that offence of murder is likely to be committed in prosecution of common object of said unlawful assembly. The learned trial judge has wrongly held the appellants guilty under Section 302 with the aid of Section 149 of the Indian Penal Code. The impugned judgment is highly erroneous, based on mis-appreciation of facts and law and the same is liable to be set aside, so far as Cr. Appeal (DB) No.1272 of 2003 is concerned. 8. Learned amicus curiae Mrs. Alpana Verma appearing in Cr. Appeal (DB) No.1368 of 2003 has subscribed the arguments advanced by learned counsel appearing for the appellants in Cr. Appeal (DB) No.1272 of 2003 and further added that all the socalled eye witnesses are telling lie before the court. The informant has said that he heard voice of his brother Vijay Kant who had been shouting for help. How remaining witnesses i.e. PW2 to PW4 attracted to the place of occurrence, has not satisfactorily been disclosed. PW1, PW2 and PW4 are own brother of deceased. They have said that they had been witnessing the occurrence but the conduct of aforesaid witnesses is not acceptable. Including the deceased there were four brothers. As per statement, the occurrence continued for about half an hour, therefore, they were having sufficient time to extend help to the deceased but they did not do so and that put a question mark on their presence at the scene of occurrence at the relevant point of time. Including the deceased there were four brothers. As per statement, the occurrence continued for about half an hour, therefore, they were having sufficient time to extend help to the deceased but they did not do so and that put a question mark on their presence at the scene of occurrence at the relevant point of time. For the argument sake, if it is said that during assault they did not dare to intervene but the story brought on record speaks that after committing murder the dead body was taken to the room of Ramdeo Chaudhary and put under lock, even during that period also they did not intervene at least to take possession of the dead body. Had the Investigating Officer been examined, many more things could have been unfolded. The impugned judgment is liable to be set aside. 9. The learned A.P.Ps. have opposed the argument and submitted that five eye witnesses have given consistent statement regarding manner of occurrence, place of occurrence and time of occurrence. The overt act committed by appellant Kripanath Choudhary and Ghosh Choudhary has well been described by all the eye witnesses. It is submitted that enmity cuts both way. Old land dispute between the parties had been prevailing and the deceased was the person who had been looking after case and therefore, he was targeted by the appellants. It is not very much important as to from where and from which place the appellants appeared, the important is the offence which they have committed. There is consistent evidence on record that appellants appeared at the scene of occurrence having lethal weapon in their hand, they restrained and surrounded the deceased and indiscriminately caused assault to him. The fatal blows were hurled by appellants Kripanath Chaudhary and Ghosh Chaudhary. The facts and evidence available on record clearly suggest that the appellants had formed unlawful assembly and object of that unlawful assembly was to commit murder and the offence likely to be committed was well within the knowledge of each and every member of that unlawful assembly and therefore, it is immaterial whether they had committed overt act or not, whether blow hurled by them caused any injury to the deceased or not. The evidence brought on record speaks that all the appellants who are named in the F.I.R. actively participated in the offence and they surrounded the deceased at the time of assault. The evidence brought on record speaks that all the appellants who are named in the F.I.R. actively participated in the offence and they surrounded the deceased at the time of assault. They had used criminal force against the deceased and assisted each and every member in committing murder. The prosecution has proved its case beyond reasonable doubt and the learned sessions judge has rightly held the appellants guilty. Non-examination of the Investigating Officer has not caused any prejudice to the appellants. 10. We have carefully gone through the evidence available on record, perused the impugned judgment and documents. We find force in the argument advanced by learned counsel appearing in Cr. Appeal (DB) No.1272 of 2003 that prosecution has failed to prove that unlawful assembly was formed by the appellants to commit murder of Vijay Kant Chaudhary. We have also considered the place of occurrence as it surfaced from the evidence of aforesaid eye witnesses. The prosecution is completely silent as to when and from which place the appellants suddenly appeared with lethal weapon in their hand. We have taken note that place of occurrence is not lonely one and it was surrounded by at least some houses. There was also village rasta, as indicated that the occurrence took place at Tinpati More. PW8 in his deposition has stated that he had noticed scuffle going on between the parties from a distance of about 100 feet, gradually he proceeded and after covering half of the distance he could able to identify Kripanath Chaudhary who caused injury to Vijay Kant by means of Garasa. Till then other persons fled away after leaving Kripanath and Dinanath at the spot. He further says that Kripanath and Dinanath took the dead body to the house of Ramdeo Chaudhry and after keeping the dead body under lock they also fled away. This witness has said that dead body of Vijay Kant Chaudhary was inspected by police after breaking open the lock of the house of Ramdeo Chaudhry. In cross-examination in para 12 he says that he could not identify other 57 persons who were present at the place of occurrence. Considering the points raised and the evidence available on record, we have also applied our mind to know as to from where all the appellants appeared but we did not get positive answer. In cross-examination in para 12 he says that he could not identify other 57 persons who were present at the place of occurrence. Considering the points raised and the evidence available on record, we have also applied our mind to know as to from where all the appellants appeared but we did not get positive answer. It does not appear from the evidence as to where the unlawful assembly by the appellants was formed but then, specific allegation of causing assault to the deceased against appellant Ghosh Chaudhary and Kripanath Choudhary appears consistent. PW1 to PW4 have consistently deposed that Kripanath Choudhary caused injury on head of deceased by means of Garasa and Ghosh Choudhary caused injury to the deceased by means of Tangi. These injuries find support from post mortem report brought on record by PW10. Old land dispute between the parties had been prevailing from before and in such cases implication of more and more persons of adverse party cannot be ruled out. Considering all these aspects of the matter, we feel inclined to allow Cr. Appeal (DB) No.1272 of 2003. Accordingly, appellants Sudama Chaudhry, Paras Nath Chaudhry and Tribhuwan Chaudhry are hereby acquitted from the charge punishable under Section 302/149 of the Indian Penal Code. They are discharged from the liabilities of their respective bail bonds and set at liberty. Since there is consistent evidence against appellant Kripanath Choudhary and Ghosh Choudhary that they caused injury to the deceased and the injuries so caused find support from the post mortem report, we do not feel inclined to allow Cr. Appeal (DB) No.1368 of 2003. Accordingly, Cr. Appeal (DB) No.1368 of 2003 stands dismissed.