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2019 DIGILAW 593 (PAT)

Sukan Sada S/o Late Bhulla Sada v. State of Bihar

2019-04-16

PRAKASH CHANDRA JAISWAL, RAKESH KUMAR

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JUDGMENT : PRAKASH CHANDRA JAISWAL, J. 1. Both the appeals were appealed through jail, and as such, at the time of admission, Mr. Arun Kumar Tripathi and Mr. Shyama Kant Singh were appointed as amicus curiae to assist the Court. In both the appeals, the appellants were convicted and sentenced by a common judgment, and as such, both the appeals were taken up together under the heading for hearing and are being disposed of by this common judgment. 2. Heard Mr. Arun Kumar Tripathi learned Amicus Curiae for the appellant in Cr. Appeal (DB) No. 958 of 2013 and Mr. Shyama Kant Singh learned Amicus Curiae for the appellant in Cr. Appeal (DB) No. 959 of 2013 as well as Mr. Ajay Mishra learned Addl. Public Prosecutor in the aforesaid appeals. 3. The aforesaid two criminal appeals have been preferred against the judgment and order of conviction dated 29.05.2013 and order of sentence dated 30.05.2013 passed by learned Adhoc Additional Sessions Judge-IV, Darbhanga in Sessions Trial No. 635 of 2010 arising out of Jalley P.S. Case No. 74 of 2010 whereby the learned trial court convicted the accused Sukan Sada and Ram Pukar Sada for the offence punishable under Sections 302/34 and 307/34 of the Indian Penal Code and sentenced them to undergo life imprisonment and also slapped them with a fine of Rs. 10,000/-each and in default of payment of fine to further undergo R.I. for six months under Sections 302/34 of the Indian Penal Code and further sentenced them to undergo R.I. for eight years and also slapped them with a fine of Rs. 5,000/-each and in default of payment of fine to further undergo R.I. for four months under Section 307/34 of the Indian Penal Code. All the sentence were directed to run concurrently. 4. 5,000/-each and in default of payment of fine to further undergo R.I. for four months under Section 307/34 of the Indian Penal Code. All the sentence were directed to run concurrently. 4. The factual matrix of the case is that Jalley P.S. Case No. 74 of 2010 was initially instituted under Sections 341, 323, 324, 307, 504/34 of the Indian Penal Code and subsequently added with Section 302 of the Indian Penal Code on the basis of fardbeyan of Kailash Devi W/o Satyanarayan Sada recorded by S.I. Nand Kishore of P.S. Jalley district-Darbhanga on 17.06.2010 at 09:00 PM in referal hospital, Jalley camp with the allegation, in succinct that on 17.06.2010 at around 07:00 PM while the informant was at her house, her co-villager, namely, Sukan Sada and Ram Pukar Sada were hurling abuse taking name of her husband from the bamboo clump located in front of her house. When she stepped out of the house, she noticed Sukan Sada armed with Tengari while Ram Pukar Sada Garasa. In the meantime, her bother-in-law (bhaisur) Garbhu Sada arrived there taking grass and forbade them from hurling abuse. Whereupon the aforesaid two accused persons made murderous attack upon him. Meanwhile, her husband Satyanarayan Sada arrived there from the side of Jogiyara and intervened the brawl. Then the aforesaid two accused persons also made murderous attack upon her husband. Her husband and brother-in-law became seriously injured in the occurrence and fell down. Then the accused persons left the scene on arrival of the villager responding hulla. Then she rushed her husband and brother-in-law to Jalley hospital with the help of villagers, where they are undergoing treatment. Finding the condition of the aforesaid two victims serious, they were referred to D.M.C.H. and during the course of treatment, husband of the informant, namely, Satyanarayan Sada succumbed to his injury. 5. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the accused Sukan Sada and Ram Pukar Sada under Sections 341, 323, 324, 307, 302, 504/34 of the Indian Penal Code. 6. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions, and after commitment and on transfer finally the case came in seisin of the learned Adhoc Additional Sessions Judge-IV, Darbhanga for trial. 7. 6. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions, and after commitment and on transfer finally the case came in seisin of the learned Adhoc Additional Sessions Judge-IV, Darbhanga for trial. 7. Charge against the accused Sukan Sada and Ram Pukar Sada was framed under Sections 302/34 and 307/34 of the Indian Penal Code. Charge was read over and explained to them by the court to which they pleaded not guilty and claimed to be tried. 8. To substantiate its case, in ocular evidence, the prosecution has examined altogether eight prosecution witnesses namely, Chandeshwar Manjhi, who happens to be maternal uncle of the deceased as PW-1, Ram Deo Sada as PW-2, Razia Devi as PW-3, informant Kailash Devi as PW-4, Janki Devi, who happens to be mother-in-law of the informant and mother of the deceased as PW-5, Dr. Rajesh Paswan, who examined the victims as PW-6, I.O. Nand Kishore as PW-7 and Dr. Veda Nand Jha, who conducted autopsy of the cadaver of the deceased as PW-8. Two court witnesses, namely, Garbhu Sada as CW-1 and Rajbatti Devi as CW-2 were also examined in the case. The prosecution has also filed and proved some documents by way of documentary evidence in the case. 9. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. The accused persons have neither adduced any ocular nor documentary evidence in buttress of their case. 10. After hearing the parties and perusing the record, the learned trial court passed the impugned judgment and order of conviction and sentence as detailed in the earlier paragraph. 11. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the convict Sukan Sada has preferred Cr. Appeal (DB) No. 958 of 2013 and convict Ram Pukar Sada has preferred Cr. Appeal (DB) No. 959 of 2013. 12. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not. 13. Appeal (DB) No. 958 of 2013 and convict Ram Pukar Sada has preferred Cr. Appeal (DB) No. 959 of 2013. 12. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not. 13. It is submitted by learned amicus curiae for the appellants that there is vital contradiction between the fardbeyan of the informant and her statement given before the court. As as-per the fardbeyan of the informant, at the time of occurrence, the appellants were hurling abuse taking name of her husband from bamboo clump. In the meantime, her brother-in-law Garbhu Sada arrived there and forbade them from hurling abuse. Whereupon they made murderous attack upon him by means of Tengari and Garasa. Meanwhile her husband arrived there from the side of Jogiyara and intervened the brawl. Whereupon they also made murderous attack upon him by the aforesaid weapons and they made both of them seriously injured. But, in quite contradiction to the aforesaid fardbeyan, the informant has stated in her statement that when the appellants were hurling abuse to her husband, her husband forbade them from abusing him. Whereupon Sukan Sada and Ram Pukar Sada assaulted him by menas of Tengari and Farsa, respectively. When her brother-in-law Garbhu Sada rushed in rescue of her husband, both the appellants also assaulted him by means of Tengari and Farsa. It is also submitted that as per the fardbeyan, at the time of occurrence, the informant was at her house while in quite contradiction to the aforesaid fardbeyan, the informant has stated in her statement that at the time of occurrence, she had gone to flour mill for grinding the wheat and when she was regressing to her house after grinding the wheat, she witnessed the occurrence on the way. The aforesaid contradiction between the fardbeyan and the statement of the informant creates serious doubt about the prosecution case and also rules out witnessing of the occurrence by the informant. It is further submitted that PW-1 has stated in paragraph 2 of his examination-in-chief that there was quarrel between Satyanarayn and Garbhu and both of them were injured in the said quarrel. Both were treated in the D.M.C.H. and Satyanarayan Manjhi succumbed to his injury during the course of treatment. The aforesaid statement of PW1 completely rules out the prosecution case. Both were treated in the D.M.C.H. and Satyanarayan Manjhi succumbed to his injury during the course of treatment. The aforesaid statement of PW1 completely rules out the prosecution case. It is also submitted that as per the account of PW-1, there was dark at the time of occurrence and the time of occurrence was 7:00 PM in the night, so it was not possible to witness the occurrence by the witnesses and moreover so precisely as to who assaulted the victims by which weapon and on which part of their person. It is also submitted that I.O. had arrived at the place of occurrence after the occurrence, but he has not found any blood or any mark of violence at the place of occurrence which creates serious doubt about the prosecution case. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellants beyond all reasonable doubt by adducing convincing, cogent, consistent and worth credence evidence. Hence, the impugned judgment and order of conviction and sentence passed against the appellants by the learned trail court is liable to be set aside and the appellants are entitled to be acquitted. 14. Per contra, learned APP for the State advocating the correctness and validity of the impugned judgment and order of conviction and sentence submitted that the informant, who happens to be eye witness of the occurrence has fully supported the occurrence. Likewise other witnesses, who also happen to be eye witness of the occurrence, have corroborated the occurrence. The ocular evidence of the prosecution also stands corroborated by the medical evidence and learned trial court correctly appreciating the facts and evidence on record has rightly passed the impugned judgment and order of conviction and sentence which is liable to be upheld and the aforesaid two appeals are shorn of merit and are liable to be dismissed. 15. From perusal of record, it appears that the informant in her fardbeyan has stated that at the time of occurrence i.e. 7:00 PM, she was at her house. In the meantime, appellants Sukan Sada and Ram Pukar Sada started hurling abuse taking name of her husband from the bamboo clump located in front of her house. Meanwhile, her brother-in-law Garbhu Sada arrived there taking grass and forbade the appellants from hurling abuse. In the meantime, appellants Sukan Sada and Ram Pukar Sada started hurling abuse taking name of her husband from the bamboo clump located in front of her house. Meanwhile, her brother-in-law Garbhu Sada arrived there taking grass and forbade the appellants from hurling abuse. Whereupon the aforesaid two appellants made murderous attack upon him by means of Tengari and Garasa. In the meantime, her husband Satyanarayan arrived there from the side of Jogiyara and intervened the occurrence. Whereupon the aforesaid two appellants also made murderous attack upon him by the aforesaid weapons and they made both her husband and brother-in-law seriously injured. But, in quite contradiction to the aforesaid prosecution case as adumbrated in the fardbeyan, the informant (PW-4) has stated in her examination-in-chief that at the time of occurrence, she had gone to Rampur flour mill for grinding her wheat and while she was regressing to her house after grinding the wheat and arrived in the marua field located in her village, she spotted Ram Pukar Sada armed with Farsa and Sukan Sada armed with Tengari. The aforesaid statement of the informant happens to be in quite contradiction to her statement made in the fardbeyan. As as per the fardbeyan, at the time of occurrence, the informant was at her house at the time of occurrence while as per her aforesaid statement, she was in marua field of her village in the course of regressing from the flour mill after grinding her wheat. Likewise, as per the fardbeyan, while the appellants were hurling abuse from bamboo clump located in front of her house, first of all, her brother-in-law Garbhu Sada arrived there and forbade them from hurling abuse, whereupon they made murderous attack upon him. In the meantime, her husband arrived there from the side of Jogiyara and intervened the occurrence. Whereupon the appellants made murderous attack upon him. But in quite contradiction to the aforesaid case, the informant has stated in her examination-in-chief that the aforesaid two appellants were hurling abuse from the field of Hira Singh and when her husband made protest on it, Sukan Sada assaulted him by means of Tengari while Ram Pukar Sada assaulted him by means of Farsa on various parts of his person. When her brother-in-law Garbhu Sada rushed in his rescue, the appellants also assaulted him by means of aforesaid weapons. When her brother-in-law Garbhu Sada rushed in his rescue, the appellants also assaulted him by means of aforesaid weapons. The aforesaid vital and material contradiction between the statement of the informant given before the court and that adumbrated in the fardbeyan creates serious doubt about manner of occurrence, place of occurrence and the prosecution case itself and it also rules out witnessing of occurrence by the informant. 16. PW-1 (Chandeshwar Manjhi), who happens to be maternal uncle of the deceased has stated in paragraph 2 of his cross-examination that there was quarrel between Garbhu and Satyanarayan and both of them were injured in the said quarrel. Both were treated in the D.M.C.H. But, Satyanarayn Manjhi succumbed to his injury during the course of treatment. The aforesaid statement of PW-1 has completely demolished the prosecution case. As as per the prosecution case, the appellants had assaulted Satyanarayan Sada and Garbhu Sada by means of Tengari and Garasa, but as per the aforesaid statement of PW-1, Garbhu and Satyanarayan had sustained injury during the course of quarrel between them and Satyanarayan Sada had succumbed to his injury. The aforesaid statement of PW-1 creates serious doubt about sanctity and credibility of the testimony of CW-1 Garbhu Sada, who happens to be injured of the case and other material witnesses as well. 17. As per the account of PW-1 (Chandeshwar Manjhi) as given by him in paragraph 3 of his cross-examination, there was dark at the time of occurrence, so he could not see properly as to who assaulted how many times and to whom. The occurrence is of 7:00 PM in the night. The aforesaid statement of PW-1 goes to indicate that it was dark at the time of occurrence and it was not properly visible as to who assaulted whom and by which weapon and how many times and on which part of the person. The aforesaid statement of PW-1 also rules out witnessing of occurrence by PW-2, PW-3, PW-5 and CW-2, who have made an abortive bid to support the prosecution case claiming themselves to be eye witness of the occurrence, witnessing the occurrence in such a dark night. 18. The aforesaid statement of PW-1 also rules out witnessing of occurrence by PW-2, PW-3, PW-5 and CW-2, who have made an abortive bid to support the prosecution case claiming themselves to be eye witness of the occurrence, witnessing the occurrence in such a dark night. 18. From perusal of record, it appears that PW-1 (Chandeshwar Manjhi) happens to be maternal uncle of the deceased, informant (PW-4) is the wife of the deceased, PW-5 (Janki Devi) is the mother-in-law of the informant and mother of the deceased, CW-1 (Garbhu Sada) is the brother of the deceased and CW-2 (Rajbatti Devi) is the sister-in-law of the deceased. Thus, all the aforesaid witnesses happen to be family members of the deceased while PW-2 (Ram Deo Sada) and PW3 (Razia Devi) happen to be beneficiary of Indra Awas scheme and their houses were constructed under the said scheme by the deceased Satyanarayan Sada and Garbhu Sada as evident from their statement. Thus, the aforesaid witnesses happen to be interested witness of the case. Though all the aforesaid witnesses claimed to have witnessed the occurrence as eye witness, but none of the witnesses has divulged the presence of other witnesses at the place of occurrence and its vicinity at the time of occurrence which creates serious doubt about witnessing of the occurrence by the aforesaid witnesses. 19. Rajbatti Devi (CW-2), who happens to be sister-in-law (bhabhi) of the deceased though has stated the name of the appellants and the victim (injured) and deceased in her statement, but in paragraph 2 of her cross-examination, she has stated that she has forgotten the name of her sister and brothers. She also does not remember the name of four inmates of her house. Though, she has claimed to have witnessed the occurrence as eye witness of the occurrence, but in paragraph 2 of her cross-examination, she has stated that she had listened hulla at the distance of one bigha of the place of occurrence, where she was cutting grass and it took one hour to arrive at the place of occurrence. The aforesaid statement of CW-2 rules out witnessing of the occurrence by her as she had arrived at the place of occurrence after one hour of listening hulla while as per the account of informant (PW-4) as given in paragraph-5 of her cross-examination, the victims were assaulted by the appellants within five minutes. 20. The aforesaid statement of CW-2 rules out witnessing of the occurrence by her as she had arrived at the place of occurrence after one hour of listening hulla while as per the account of informant (PW-4) as given in paragraph-5 of her cross-examination, the victims were assaulted by the appellants within five minutes. 20. As per account of PW-1, PW-4 and CW-1 the blood was oozing from the person of the victims and CW-1 has stated in paragraph 5 of his cross-examination that profuse blood was fallen in the mid of field. But, I.O. (PW-7) has not mentioned about finding of any blood or any mark of violence at the place of occurrence in the case diary. He has also not brought any objective evidence on the record. 21. Considering the aforesaid facts and circumstances of the case and evidence adduced by the prosecution, we find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellants beyond all reasonable doubt by adducing convincing, cogent, consistent and worth credence evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned trial court against the appellants is set aside and the appellants are acquitted of all the charges levelled against them giving them benefit of doubt. As the appellants are in custody, they are directed to be released forthwith from the custody, if not wanted in any other case. Accordingly, the aforesaid two Criminal Appeals are allowed. 22. Let a copy of the first and last page of this judgment be handed over to the learned amicus curiae, Mr. Arun Kumar Tripathi and Mr. Shyama Kant Singh, and both the learned amicus curiae be paid prescribed fee by the Patna High Court Legal Services Committee.