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2018 DIGILAW 625 (PAT)

Bharat Sao, S/o Kameshwar Sao v. State of Bihar

2018-04-06

PRAKASH CHANDRA JAISWAL, RAVI RANJAN

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JUDGMENT : PRAKASH CHANDRA JAISWAL, J. Heard learned counsel for the appellant, Mrs. Proniti Singh, learned Amicus Curiae and learned APP for the State on this criminal appeal. 2. This criminal appeal has been preferred against the Judgment and Order of conviction dated 25.06.2012 and order of sentence dated 26.06.2012 passed by Adhoc Additional District and Sessions Judge-II, Sheikhpura in Sessions Trial No.722 of 2011 arising out of Ariari P.S. Case No.106 of 2010, whereby the learned trial court convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment (R.I.) for life and slapped him with fine of Rs.5000/- and in default of payment of fine, to further undergo Rigorous Imprisonment for one year in addition to the substantive sentence of imprisonment. 3. Factual matrix of the case is that Ariari P.S. Case No. 106 of 2010 was instituted under Section 302/34 of the Indian Penal Code against Bharat Sao and Kameshwar Sao on the basis of the fardbeyan of Mita Devi, wife of Indradeo Sao recorded by S.I. Ashok Kumar Yadav S.H.O. P.S. Ariari on 09.07.2010 at 07:30 AM at village Bhojdih with the allegation in succinct that the informant had performed marriage of her daughter Jai Pati Devi with Bharat Sao of village Bhojdih about ten years back. She was blessed with two daughters and one son out of the aforesaid wedlock. Her son-in-law was unemployed poor person. He used to vend tikuli and sindur as hawker and hardly could meet the need of his family. Her daughter persistently insisted him to earn more money by doing some other work whereupon he used to sulk and thrash her. On making complaint to her by her daughter about the same, she used to pay visit to marital house of her daughter and persuade her daughter and son-in-law, but there was no change in the nature of her son-in-law and he continued to thrash her off and on. Further allegation is that on 09.07.2010 in the morning, she got information about murder of her daughter. Responding the same, she rushed to the marital house of her daughter along with her family members and found the dead body of her daughter in the courtyard of her house. Her face was smeared with the blood. Further allegation is that on 09.07.2010 in the morning, she got information about murder of her daughter. Responding the same, she rushed to the marital house of her daughter along with her family members and found the dead body of her daughter in the courtyard of her house. Her face was smeared with the blood. On making enquiry, she learnt that her son-in- law Bharat Sao and his father Kameshwar Sao have eliminated her daughter by assaulting her by means of brick in the night. Both were found absconding from the house. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet under Sections 498A and 302 of the Indian Penal Code against the aforesaid accused Bharat Sao showing the accused Kameshwar Sao as not sent up. 5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused and committed the case to the court of sessions and on transfer finally the case came in the seisin of Adhoc Additional District and Sessions Judge-II, Sheikhpura for trial. 6. Charge against the accused was framed under Sections 498A and 302 of the Indian Penal Code. Charges were read over and explained to him to which he pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether nine prosecution witnesses namely, Virendra Prasad as PW-1, Dhirendra Kumar as PW-2, Anil Kumar as PW-3, informant Meeta Devi as PW-4, Radha Kumari as PW-5, Maksudan Sao as PW-6, Ashok Kumar Yadav as PW-7, Dr. Sudhir Kumar who conducted the autopsy of the cadaver of the deceased as PW-8 and Dr. Md. Faizuddin, one of the member of the Medical Board conducting the autopsy of the cadaver of the deceased as PW-9. The prosecution has also filed and proved some documents in the case by way of documentary evidence. 8. Statement of the accused was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming complete ignorance about the manner of death of the deceased. The accused has neither adduced any ocular nor documentary evidence in buttress of his case. 9. 8. Statement of the accused was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming complete ignorance about the manner of death of the deceased. The accused has neither adduced any ocular nor documentary evidence in buttress of his case. 9. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convict has preferred the present Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellant beyond all reasonable doubts or not. 12. It is submitted by learned counsel for the appellant and learned Amicus Curiae that there is no eye witness of the occurrence barring PW-5 Radha Kumari who happens to be daughter of the deceased, but the said witness was admittedly aged about three years at the time of occurrence and she happens to be child witness. She does not appear to be competent witness as on quizzing by the Court to test her competency to depose in the case, she had replied that she had come to the Jail and vented her ignorance about reason for her visit in response to the question put by the Court about reason of visiting the Court. She was not subjected to more questions to test her competency to give evidence in the court barring about number of brothers and sisters she is having and as to whether speaking truth or lie is good which was responded by her correctly. The aforesaid testimony of the said child witness also does not stand corroborated by any other eye witness of the case. Hence, the testimony of the aforesaid uncorroborated incompetent child witness is not worth credence and reliable. It is further submitted that the said witness in her cross-examination has also candidly stated that at the time of occurrence, she was sleeping and when she woke up she found her mother died and father absconding. Thus, she does not happen to be eye witness of the occurrence. It is further submitted that the said witness in her cross-examination has also candidly stated that at the time of occurrence, she was sleeping and when she woke up she found her mother died and father absconding. Thus, she does not happen to be eye witness of the occurrence. It is also submitted that as per the fardbeyan, the informant has learnt the occurrence of committing murder of her daughter by her son-in-law (appellant) and his father by means of brick, but she has not disclosed the name and identity etc. of the source of information. Though in her statement, the informant has stated that she had got knowledge of the aforesaid occurrence from her grand-daughter (PW-5) at the marital house of her daughter, but in the fardbeyan, she had not divulged the factum of learning of the occurrence through her grand-daughter though the fardbeyan was given subsequent to meeting with her grand-daughter at the place of occurrence which creates serious doubt about the prosecution case and also creates doubt about credibility of PW-5 as had she learnt about the complicity of the appellant in the occurrence through her grand-daughter, she would have stated so in her fardbeyan, but not done so which also indicates that PW-5 actually had not witnessed the occurrence rather is a tutored witness. It is further submitted that as per the prosecution case, the appellant used to thrash her daughter as he used to earn paltry amount by vending tikuli and sindur as hawker and did not make effort to earn more money by doing some other work despite persistent insistence of her daughter, but none of the witnesses examined by the prosecution has corroborated the aforesaid case of the prosecution. Moreover, in quite contradiction to the aforesaid case of the prosecution taken in the fardbeyan, the informant has stated the cause of death as her failure to cough up the demand of Rs. 10,000/- of the appellant. The said case of the prosecution also does not stand corroborated by any other witness of the case. Moreover, in quite contradiction to the aforesaid case of the prosecution taken in the fardbeyan, the informant has stated the cause of death as her failure to cough up the demand of Rs. 10,000/- of the appellant. The said case of the prosecution also does not stand corroborated by any other witness of the case. It is further submitted that as per the prosecution case, the appellant assaulted the deceased by means of brick, but in quite contradiction to the aforesaid prosecution case, PW-5 has stated that the appellant assaulted the deceased by means of brick, lodha and khanti and the informant has stated in her examination-in-chief about assaulting the deceased by the appellant by means of lodha (stone meant for grinding spices). Moreover, the aforesaid case of the prosecution also does not stand corroborated by the medical evidence as the doctor has opined the anti-mortem injury inflicted to the deceased caused by sharp cutting weapon. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellant beyond all reasonable doubts by adducing reliable, trustworthy and worth credence ocular and documentary evidence. Hence, the appellant is entitled to be acquitted. 13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that PW-5 who happens to be daughter of the deceased, had witnessed the occurrence and she has fully supported the prosecution case. Other witnesses and medical evidence have also corroborated the prosecution case and the learned trial court correctly appreciating the facts and evidence available on record has rightly passed the aforesaid Judgment and Order of conviction and sentence which is liable to be upheld and this appeal has no substance in it and is liable to be dismissed. 14. To substantiate its case, prosecution has examined six material witnesses of the case i.e. PW-1, PW-2, PW-3, PW-4, PW-5 and PW-6. Out of the aforesaid witnesses, PW-1 and PW-3 turned hostile while PW-2 and PW-6 happen to be hearsay witnesses of the case as PW-2 Dhirendra Kumar has vented his ignorance about the assailant of the wife of Bharat Sao in his examination-in-chief itself. In Para-3 of his cross-examination, he has stated that he got the information of death on the following morning. He neither witnessed the occurrence nor anyone divulged him about the same. In Para-3 of his cross-examination, he has stated that he got the information of death on the following morning. He neither witnessed the occurrence nor anyone divulged him about the same. He has even denied about listening of any feud between the couple earlier. PW-6 Maksudan Sao who happens to be uncle of the deceased has stated in his examination-in-chief that on receiving the phone call, they arrived at the marital house of the deceased and found blood drenched dead body of Jai Pati Devi there. The locals divulged him that Bharat Sao had eliminated her. He did not learn about cause of her murder. He also did not grill her children about her assailant. He did not disclose the name and identity of the source of information of the occurrence and none has come forward in corroboration of the divulgence of the occurrence to him. Thus, the aforesaid uncorroborated evidence of the said hearsay witness is not admissible in evidence. In Para-6 of his cross-examination, he has even denied the demand of any money by the appellant Bharat Sao from his niece before him. He has stated that his sister-in-law (informant) had divulged him about the demand of money by the appellant Bharat Sao, but the informant has not corroborated the factum of divulgence of the aforesaid case by her to him. Hence, the aforesaid statement of the said hearsay witness also does not appear to be admissible in evidence. 15. Though informant Meeta Devi (PW-4) has stated in her examination-in-chief in consonance to the prosecution case that the appellant Bharat Sao had eliminated her daughter around two years back in village Bhojdih. On receiving phone call, she rushed to village Bhojdih and found the blood drenched dead body of her daughter sustaining injury on her head there. She learnt there that Bharat Sao had eliminated her. But she has not disclosed the name and identity of the source of information and none has come forward to corroborate the factum of divulgence of story of murder of the deceased by the appellant to her. She learnt there that Bharat Sao had eliminated her. But she has not disclosed the name and identity of the source of information and none has come forward to corroborate the factum of divulgence of story of murder of the deceased by the appellant to her. Moreover in quite contradiction to the prosecution case as taken by her in her fardbeyan that when she arrived at the place of occurrence, she learnt about committing murder of her daughter by the appellant and his father Kameshwar Sao, she has stated in her examination-in-chief that she learnt there about committing murder of her daughter by the appellant Bharat Sao only. In her fardbeyan, she has not taken the name and identity of the source of information, but in quite contradiction to the aforesaid aspect of the case, she has stated in Para-2 of her examination-in-chief that her grand-daughter divulged her that her father committed murder of her mother by assaulting her by means of lodha (stone meant for grinding spices). In Para-10 of her cross-examination, she has also stated that barring her grand-daughter, none has divulged her about committing murder by Bharat Sao. The grand-daughter of the informant Radha Kumari examined in this case as PW-5 has not corroborated the factum of divulgence of committing murder of the deceased by her father to the informant. Hence, aforesaid statement of the informant for want of corroboration is not admissible in evidence. As per the prosecution case, as adumbrated in the fardbeyan, the appellant used to thrash her daughter as he used to earn paltry amount by vending tikuli and sindur as hawker and did not make effort to earn more money by doing some other work despite persistent insistence of her daughter. As per the aforesaid prosecution case, appellant committed murder of the deceased over her persistent insistence for earning more money by doing some other work instead of vending tikuli and sindur as hawker thereby earning paltry amount. But in quite contradiction to the aforesaid prosecution case, the informant has stated in Para-4 of her examination-in-chief that Bharat Sao used to demand Rs. 10,000/- preceding to the occurrence and committed murder of her daughter for not coughing up the aforesaid demand. More so, though in her examination-in-chief she has stated about demanding of Rs. But in quite contradiction to the aforesaid prosecution case, the informant has stated in Para-4 of her examination-in-chief that Bharat Sao used to demand Rs. 10,000/- preceding to the occurrence and committed murder of her daughter for not coughing up the aforesaid demand. More so, though in her examination-in-chief she has stated about demanding of Rs. 10,000/- by Bharat Sao preceding to the occurrence, but in Para-9 of her cross-examination, she has stated that Bharat Sao never demanded money from her and he had also not demanded any money from her daughter before her. Thus, from perusal of the testimony of the informant, it appears that her aforesaid testimony is in quite contradiction to the prosecution case as alleged in the fardbeyan and also intra se regarding demand of money by Bharat Sao (appellant) preceding to the murder of her daughter, cause of murder of her daughter, source of information of the murder of the deceased by the appellant, assailants of the deceased and non-corroboration of story of the murder of the deceased by the appellant as stated by the informant by her grand-daughter. Hence, aforesaid testimony of the informant does not appear to be reliable and worth credence. 16. The only eye witness of the occurrence is said to be the daughter of the deceased (grand-daughter of the informant), namely, Radha Kumari (PW-5). From perusal of the testimony of the said witness, it appears that she had divulged her age as three years on the date of giving deposition though the Court has assessed her age as six years. But the informant PW-4 has stated in Para-7 of her cross-examination that her grand-daughter (PW-5) is aged about five years. Said deposition of the informant was recorded on 08.05.2012 while the date of occurrence is 09.07.2010, hence PW-5 must be three years old at the time of occurrence. Learned Trial Court has tested the competency of the said witness before recording her testimony by putting some questions to her and in reply to the question as to for what purpose she has come to the Court, she had replied that she had arrived at jail and she has failed to disclose reason for her visiting there. Learned Trial Court has tested the competency of the said witness before recording her testimony by putting some questions to her and in reply to the question as to for what purpose she has come to the Court, she had replied that she had arrived at jail and she has failed to disclose reason for her visiting there. Though she has also replied to the questions about number of brothers and sisters she is having and as to whether speaking truth or lie is a good, but she was not subjected to more questions to test her competency to depose before the Court. As she had no knowledge of the place of visit and reason for visiting there, but instead of doing so, learned Trial Court has certified her to be competent witness. In view of the aforesaid aspect of the case and considering such a tender age of the witness, in our opinion, she does not happen to be competent child witness. From perusal of the record, it appears that none of the eye witness has also come forward to corroborate aforesaid testimony of PW-5. Thus testimony of such uncorroborated and incompetent child witness is not worth credence and reliable. 17. Moreover, as per fardbeyan, the informant had learnt the occurrence of murder of her daughter by her son-in-law (appellant) and his father by means of brick, but she has not disclosed the name and identity of the source of such information while in her examination-in-chief, she has stated that she had got knowledge of the aforesaid occurrence from her grand-daughter (PW-5) at the marital house of her daughter, but in the fardbeyan, she had not divulged the factum of learning of the occurrence through her grand-daughter though the fardbeyan was given subsequent to meeting with her grand-daughter at the place of occurrence which creates serious doubt about the prosecution case and also about the credibility of the informant (PW-4) as once she learnt about the complicity of the appellant in the occurrence through PW-5 then why she has not stated so in her fardbeyan? Said aspect of the case also indicates that PW-5 actually had not witnessed the occurrence rather is a tutored witness. Said aspect of the case also indicates that PW-5 actually had not witnessed the occurrence rather is a tutored witness. Though PW-5 has stated in her examination-in-chief that her father Bharat Sao (appellant) committed murder of her mother by means of brick, lodha and khanti, she had witnessed the occurrence, she had also protested it preceding to the occurrence and started weeping whereupon her father extended threatening of dire consequence to her and after assaulting her mother, he absconded. But in para-6 of her cross-examination, she has stated that she was sleeping at the time of occurrence. When she woke up, she found her mother died and father absconding. When her father assaulted her mother, she and her brother and sister were sleeping and after her awakening, people arrived there. The aforesaid statement of PW-5 candidly indicates that she had not witnessed the occurrence rather she was sleeping at the time of occurrence along with her siblings and when she woke up she found her mother dead. In view of the aforesaid contradiction between her statement given in her examination-in-chief and that given in her cross-examination about witnessing of the occurrence by her, aforesaid child witness also does not appear to be worth credence and reliable. Thus, in our opinion, it would not be safe to hold conviction of the appellant relying upon the sole testimony of the aforesaid incompetent child witness of the case. 18. As per the prosecution case as taken by the informant in her fardbeyan, the appellant had assaulted the deceased by means of brick while as per the statement of the informant given by her in her examination-in-chief, she gathered knowledge from her grand-daughter (PW-5) about assaulting the deceased by the appellant by means of lodha which means that the appellant had assaulted the deceased by means of hard and blunt substance. I.O. (PW-7) has stated in Para-4 of his examination-in-chief that he found blood stained brick bat at the place of occurrence but from perusal of the post mortem report and testimony of Dr. Sudhir Kumar (PW-8), it appears that doctor has opined the cause of death due to anti-mortem injury inflicted to the deceased by sharp cutting weapon. Thus, the aforesaid ocular evidence of the prosecution also does not stand corroborated by the medical evidence. 19. Sudhir Kumar (PW-8), it appears that doctor has opined the cause of death due to anti-mortem injury inflicted to the deceased by sharp cutting weapon. Thus, the aforesaid ocular evidence of the prosecution also does not stand corroborated by the medical evidence. 19. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court is set aside and the appellant is acquitted from the charges levelled against him. As the appellant is in custody, he is directed to be released forthwith, if not wanted in any other case. Accordingly, this criminal appeal is allowed. 20. Let a copy of the first and last page of this judgment be handed over to the learned Amicus Curiae, Ms. Proniti Singh, and learned Amicus Curiae be paid prescribed fee by the Patna High Court Legal Services Committee.