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2019 DIGILAW 1138 (PAT)

Putul Jha v. State of Bihar

2019-08-14

HEMANT KUMAR SRIVASTAVA, PRABHAT KUMAR SINGH

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JUDGMENT : PRABHAT KUMAR SINGH, J. 1. Heard learned counsel for the appellants and learned Additional Public Prosecutor appearing for the State. 2. The instant criminal appeal is directed against the judgment of conviction and order of sentence dated 22nd March, 1995, passed by the learned Additional Sessions Judge-I, Saharsa in Sessions Trial No. 78 of 1993/9 of 1993, arising out of GR No. 1207 of 1991/Trial No. 714 of 1992, whereby and whereunder appellant Binay Jha has been convicted for offence punishable under sections 302/34 and 324 of the Indian Penal Code as well as under section 27(1) of the Arms Act. Other two appellants Putul Jha and Heman Choudhary have been convicted for the offence punishable under sections 302/34 of the Indian Penal Code. All the convicts Binay Jha, Putul Jha and Heman Choudhary have been sentenced to undergo imprisonment for life for the offence punishable under sections 302/34 of the Indian Penal Code. Convict Binay Jha has been, further, sentenced to undergo rigorous imprisonment for three years for the offence punishable under section 27(1) of the Arms Act and for one year for the offence punishable under section 324 of the Indian Penal Code. All the sentences have been ordered to run concurrently. 3. Prosecution's case, based on the fard beyan of one Bimla Devi (PW 3), wife of Shobha Nand Jha (deceased) of village Bargaon, Police Station Basanahi, District Saharsa, is that on 18.11.1991 at about 10 to 11 AM her husband along with his 1½ years old grand son in his lap, had gone to witness cricket match. At around 2 to 2.30 PM, she went to offer puja to Bishara Asthan where she met her husband and the grand son who were returning to the house after witnessing the match. She further states that on her indication her husband halted at Krishna Mandir waiting for her to return to the house together. PW 3 states that, thereafter, she entered into the temple to offer puja. Meanwhile, she heard the sound that 'finish him at this place'. She quickly came out and saw Putul Jha, Vinay Jha and Heman Jha. Putul Jha and Heman Jha were armed with bow and arrow, whereas Vinay Jha was armed with country made pistol. First of all Putul Jha hurled arrow hitting right side chest of her husband, thereafter she started raising hulla. She quickly came out and saw Putul Jha, Vinay Jha and Heman Jha. Putul Jha and Heman Jha were armed with bow and arrow, whereas Vinay Jha was armed with country made pistol. First of all Putul Jha hurled arrow hitting right side chest of her husband, thereafter she started raising hulla. In the meantime, Vinay Jha fired causing injuries on the cheek of her grand son and chest of her husband. Heman Choudhary also inflicted arrow injury on the chest of informant's husband who died at the spot. She further stated that on her hulla PW 8 Ajay Kumar Jha, PW 1 Lalo Jha @ Lal Jha, PW 4 Uday Jha and others came to the spot and took the dead body to the informant's courtyard. On the information made by PW 8 Ajay Kumar Jha, police reached the village and recorded fard beyan (exhibit 5) of PW 3, Bimla Devi on 18.11.1991 at 4.30 PM giving rise to registration of formal FIR (exhibit 6). Police, after completing investigation submitted charge sheet on the basis of which cognizance of the offence was taken against the aforesaid three accused persons and finally the case was committed to the court of sessions vide order dated 10.5.1993. Appellants in their statement denied the prosecution allegation and claimed to be innocence. 4. Prosecution, in order to prove its case, examined total 11 witnesses and exhibited some documents. PW 1 Lal Jha is a witness of the occurrence. PW 2 Krishna Kumar Lal, PW 4 Uday Kant Jha, PW 6 Anand Kumar Jha, PW 7 Lalan Jha and PW 8 Ajay Kumar Jha have expressed their ignorance regarding the occurrence in their respective depositions and thus have been declared hostile in course of the trial. PW 3 Bimla Devi is wife of the deceased and informant of the case who claims to be eye witness of the occurrence. PW 5 Dr. Arun Kumar Singh is the surgeon who conducted autopsy. PW 9 Birendra Kumar Verma is a tender witness. PW 10 Dr Kishor Kumar is the doctor who examined injured grand son of the victim. PW 11 Renu Devi, who is daughter-in-law of the victim. She is a hearsay witness. 5. PW 5 Dr. Arun Kumar Singh is the surgeon who conducted autopsy. PW 9 Birendra Kumar Verma is a tender witness. PW 10 Dr Kishor Kumar is the doctor who examined injured grand son of the victim. PW 11 Renu Devi, who is daughter-in-law of the victim. She is a hearsay witness. 5. Learned counsel for the appellants, assailing the judgment of conviction and sentence, submits that the prosecution has completely failed to substantiate its case beyond all reasonable doubts and the trial court passed the order of conviction only on surmises and conjectures without appreciating the evidence in its proper perspective. It is further submitted on behalf of the appellants that PW 3, who claims to be the sole eye witness of the occurrence, cannot be relied upon in view of the fact that there is material improvement in her deposition made during the trial which comes into direct conflict with her earlier statement made before the police. Learned counsel further submits that as the IO has not been examined in the case, as a result the defence could not get opportunity to explain the discrepancies of the prosecution witnesses. It is also the case of the appellants that neither the blood stained gamcha nor the blood soaked soil or any other objective materials have been brought on record by the prosecution to establish its case. In absence of those incriminating and objective materials, the prosecution has completely failed to prove its case. Learned counsel for the appellants further submits that except PW 3 not a single witness came to support the prosecution case and moreover the prosecution failed to bring on record the first information about the occurrence which was given prior to recording the fard beyan of PW 3 and non-bringing of the first information regarding occurrence on record creates serious doubt about the prosecution's case, but the trial court failed to take notice of the aforesaid fact. 6. On the other hand, learned Additional Public Prosecutor representing the State has supported the judgment of the conviction and sentence and has submitted that perusal of the impugned judgment goes to show that the trial court has dealt with the evidence of the prosecution in details and after extensive consideration of the same has passed the impugned judgment of conviction and sentence. It is further submitted on behalf of the State that the prosecution, after examining ocular evidence of PW 3 Bimla Devi, who is sole eye witness of the case, supported by depositions of PW 1 and PW 11, has duly proved the prosecution case. He also submits that the prosecution case has also been corroborated by medical evidence and hence, there is no need to interfere with the judgment of conviction and sentence passed by the trial court. He further submits that it is settled principle of law that the judgment of conviction can be passed on the sole testimony of a witness if the same is convincing and reliable. In the preset case, PW 5 has supported the prosecution case attributing specific role to the appellants in commission of murder of her husband, and as such the appeal is liable to be dismissed. 7. From perusal of the evidence of witnesses and going through the judgment along with the Lower Court Records, it appears that PW 3 Bimla Devi, wife of the victim and informant of the case is the sole eye witness of the occurrence. She has given her evidence to the effect that on 18.11.1991 at about 10 to 11 AM her husband along with his one and a half year old grand son in the lap, had gone to witness cricket match. At around 2 to 2.30 PM she went to offer puja to Bishhara Asthan where she met her husband and the grand son who were returning to the house after witnessing the match. She further states that on her indication her husband halted at Krishna Mandir waiting for her to return to the house together. PW 3 states that at that time her grand son Manish was in his lap. She further deposes that she entered into the temple to offer puja. Meanwhile, she heard the sound that 'finish him at this place' thereafter she quickly came out and saw Putul Jha, Vinay Jha and Heman Choudhary. Putul Jha and Heman Choudhary were armed with bow and arrow, whereas Vinay Jha was having a country made pistol in his hand. First of all Putul Jha hurled arrow hitting right side chest of her husband, whereupon she raised alarm. In the meantime, Vinay Jha fired causing injuries on the cheek of her grand son and chest of her husband. First of all Putul Jha hurled arrow hitting right side chest of her husband, whereupon she raised alarm. In the meantime, Vinay Jha fired causing injuries on the cheek of her grand son and chest of her husband. Heman Choudhary also inflicted arrow injury on the chest of informant's husband who died at the spot. She has further stated that on her raising hulla PW 8 Ajay Kumar Jha, PW 1 Lalo Jha @ Lal Jha, PW 4 Uday Jha, Permeshwar Jha (not examined), Dhaneshwar Jha (not examined) and others came to the spot and on her request they shifted the dead body to her courtyard. On the information of PW 8 Ajay Kumar Jha, police reached the village and recorded her fard beyan (exhibit 5) on 18.11.1991 at 4.30 PM in presence of Ajay Jha and Varneshwar Jha. Accused persons after committing the offence fled away. In paragraph 11 of the deposition, she has stated that before this occurrence one Bipin Jha, brother of accused Putul Jha, was killed and family of Putul Jha wanted my husband to be made accused in that case but the same could not materialize as a result of which out of frustration all the accused persons killed her husband. According to her, this was the motive behind gruesome murder of her husband. In paragraph 18 of the cross examination, she has stated that firstly arrow hit her husband as a result of which he fell down and became unconscious. She did not reach near him and raised hulla. Thereafter, Vinay Jha from the distance of five feet, fired his pistol which hit the chest of her husband. Lastly, Heman Jha hurled arrow blow on her husband which pierced into his chest. Some blood had been soaked in his gamachi, dhoti, her sari and clothes of their grand son. Some blood had also fallen on the ground. In paragraph 19 she stated that when her husband fell down, all the witnesses, as named above, came at the place of occurrence to whom she narrated the entire story. In paragraph 20 of the cross examination, she has stated that information was given to the Chaukidar and Dafadar through Ajay Jha and she did not hand over her blood stained sari and clothes of the grand son to the police. 8. PW 1 Lal Jha is another witness on the point of the alleged occurrence. In paragraph 20 of the cross examination, she has stated that information was given to the Chaukidar and Dafadar through Ajay Jha and she did not hand over her blood stained sari and clothes of the grand son to the police. 8. PW 1 Lal Jha is another witness on the point of the alleged occurrence. He has deposed that on 18.11.1991 at about 2 to 2.30 PM he was returning to the house from watching cricket at School field and as soon as he reached near Krishna temple, he heard firing sound and hulla. Thereafter, he immediately rushed to the place of occurrence and found Vinay Jha, Putul Jha and Heman Choudhary were running towards south from the place of occurrence. Putul Jha and Heman Choudhary were carrying bow and arrow while Vinay Jha was having a country made pistol in his hand. He further saw that Shobhanand Jha and his grand son had fallen on the ground. He noticed that an arrow was embedded in the right side chest and there was gun shot injury on the left side chest of shobhanand Jha. He also saw blood was oozing out from the cheek of his grand son, while Bimla Devi (PW 3) was weeping holding the head of her husband. In paragraphs 13 and 14 of the cross examination, he has stated that on hearing the firing sound, he rushed to the place of occurrence and saw from the distance of 20 feet that all the three accused persons were fleeing away from the place of occurrence but he and others did not try to catch them as they were armed with various weapons. He also saw Ajay Jha, Uday Kant Jha, Varuneshwar Jha, Dhaneshwar Jha and Bimla Devi. He has stated that Ajay Jha first reached near the dead body thereafter he reached near it. Soon 100 to 150 people gathered at the place of occurrence. In paragraph 20 of the cross examination, he states that Ajay Jha informed the police station at Basnahi village regarding the occurrence which is > kilometers away from the place of occurrence. In paragraph 24 of the cross examination, he has stated that he had told the police the name of all the three appellants as the persons who fled away from the place of occurrence. In paragraph 24 of the cross examination, he has stated that he had told the police the name of all the three appellants as the persons who fled away from the place of occurrence. He has also stated that it is not true that he has made false deposition implicating the appellants due to previous enmity with them. 8. PW 11 Renu Devi, daughter in law of the victim, has also supported the prosecution case. She has stated that on the date of alleged occurrence at 2 to 2.30 PM her mother-in-law (PW 3) came making hulla that her father-in-law has been killed by Putul Jha, Binay Jha and Heman Choudhary. She identified the appellants in the dock stating that they are the same persons who had been named by her mother-in-law. She also deposed that the occurrence took place in the premises of Krishna temple and her son Manish had also received injuries on his cheek. In paragraph 8 of the deposition, she has stated that she and her mother-in-law narrated about the occurrence to the Chaukidar and Dafadar who had come to her house soon after the occurrence. 9. PW 5 Dr. Arun Kumar Singh held autopsy on the deceased Sobhanand Jha on 19.11.1991 at 11 AM and found following ante mortem injuries on his person:- "A circular gun shot wound with inverted and charred margin ½" in diameter, on the left side of mid chest. A penetrating wound, on the lower part of the chest, on the right side ½" x ½" x ½" in dimension with arrow with bamboo stick. the chest wall, on the right side, 3 " lateral to injury no.2, dimension ½" x ½" x 5" with arrow without bamboo stick. External injury on back of thoracic wall on left wide with everted and lacerated margin, one lacerated wound 1" x ½". The doctor in his post mortem report (exhibit 4) has opined that the death had been caused due to shock and haemorrhage, as a result of above mentioned gun shot and arrow injuries. 10. PW 10 is Dr. Kishor Kumar, who had examined grand son of the victim Manish on 19.11.1991 and as per injury certificate contained in exhibit 1, he has found lacerated wound with burnt margin over right cheek size 1" x 1". 10. PW 10 is Dr. Kishor Kumar, who had examined grand son of the victim Manish on 19.11.1991 and as per injury certificate contained in exhibit 1, he has found lacerated wound with burnt margin over right cheek size 1" x 1". In the opinion of this doctor, nature of the injury was simple and had been caused by a fire arm. 11. On the close scrutiny and examination of the entire prosecution evidence, it is apparent that there is no evidence on the record to show that any trail of blood was found either at the place of occurrence or at the place where the dead body had been shifted. From perusal of the seizure list, it also appears that no incriminating article or any objective material has been seized from the place of occurrence by the IO. It is the case of the prosecution that gamacha of the victim and sari of PW 3 had blood stains. It is well known principle of law that the absence of blood at the place of occurrence that too, in a murder case makes the prosecution case doubtful, especially, when the murder has been caused by gun shot injuries. It is also apparent from the prosecution case that the entire occurrence has taken place at around 2 to 2.30 PM in a public place and about 100/150 persons had gathered after the occurrence but not a single independent witness has been examined on behalf of the prosecution and there is no plausible explanation for non-examination of the independent witnesses in this case which causes serious prejudice to the prosecution case. It is an admitted fact that there was old enmity between the parties. It is also admitted position that the IO of the case has not been examined as a result of which many discrepancies and improvements made by the prosecution witnesses during course of the trial could not be explained and the defence could not get an opportunity to draw attention of the IO towards those inconsistencies and improvement made by the prosecution witnesses including the informant and as such lapses and latches on the part of the prosecution case has also caused serious prejudice to the defence. Presence of PW 3 near the place of occurrence at about 2 to 2.30 PM also seems doubtful in view of the fact that normally puja is performed in the morning hours and in the instant case PW 3 claims that at about 2 to 2.30 PM when she had gone to offer puja in Bishara temple, she met her husband and soon thereafter occurrence took place. Besides this, her conduct on the place of occurrence at the time of assault does not appear to be natural and normal. From these circumstances apart from her improvement in the testimony before trial court. Coupled with the fact that there was old enmity between the parties make her claim to be eye witness of the occurrence highly doubtful and unreliable. In absence of any independent corroboration of evidences by the prosecution on the point of occurrence it becomes difficult to sustain the order of conviction on the solitary testimony of PW 3. 12. Further, submission on behalf of the appellants, that the initial version of the prosecution case has been suppressed by the prosecution, also finds supports from the statement of PW 8 Ajay Jha, who in paragraph 2 of the deposition, has stated that he went to the Police Station and gave information about the murder of Shobhanand Jha. The aforesaid statement of PW 8 Ajay Jha is also corroborated by the deposition of PW 3 Bimla Devi and PW 1 Lal Jha who have also deposed that PW 8 Ajay Jha went to the Police Station and gave the first information to the police about the occurrence. But, nowhere, in the evidence of the prosecution party, there is any whisper about the aforesaid statement which was given by PW 8 Ajay Jha much before recording of the fard beyan of PW 3, which makes the prosecution case highly doubtful and goes to the root of the case and causes serious dent in the prosecution case. 13. Considering the aforesaid facts and circumstances of the case and the infirmities as discussed and pointed out above, it appears that the prosecution has completely failed to prove the case beyond all shadow of doubt. 13. Considering the aforesaid facts and circumstances of the case and the infirmities as discussed and pointed out above, it appears that the prosecution has completely failed to prove the case beyond all shadow of doubt. In the aforesaid background the testimony of PW 3 who claims to be the eye witness of the occurrences also becomes unworthy of credence and it would not be safe to convict the appellants on the basis of sole testimony of PW 3 which does not appear to be reliable, credible and inspiring confidence. Hence, the impugned judgment and order of conviction and sentence passed by learned trial court against the appellants are set aside and the appellants are acquitted of all the charges levelled against them giving them benefit of doubt. 14. As the appellants are on bail, they are discharged from the liabilities of their bail bonds. 15. Accordingly, the Criminal Appeal is allowed.