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2019 DIGILAW 689 (JHR)

Sukul Choudhary v. State of Bihar now Jharkhand

2019-03-11

APARESH KUMAR SINGH

body2019
JUDGMENT : Heard, learned Senior counsel and learned A.P.P. for the State. 2. Sole appellant has been convicted for the charge under Section 302 of the Indian Penal Code by the learned Sessions Judge, Palamau by the impugned judgment of conviction and order of sentence, both dated 20.07.1996, in Sessions Trial No. 351 of 1992 and sentenced to undergo Rigorous Imprisonment for life. The other two accused persons namely, Hardeo Chaudhary and Nanhku Chaudhary have been acquitted by given benefit of doubt. 3. The prosecution was launched on the basis of the fardbeyan of informant, Fuleshwar Choudhary (P.W.6) and father of the deceased girl-Rudi Kumari (aged about 6 years) recorded on 15th August, 1991 at 16.15 hours (Thursday). The informant alleged that on 15th August, 1991, he had gone for transplantation of paddy leaving behind his daughter, Rudi Kumari along with his cousin brother Suresh Choudhary in the house. No one else was there in the house in the afternoon. At around 1.30 P.M. informant's wife, Murti Devi (P.W.5) was returning to the house for having meal and he was also following her. As soon as his wife reached in the courtyard, she saw Sukul Choudhary (appellant), son of Sahdeo Choudhary, resident of village-Rabda Tola Kewal, P.S.-Chainpur, District-Palamau, administering some poison like substance in a spoon to his daughter, Rudi Kumari. Nanhku Choudhary, son of Dukhi Choudhary and Sahdeo Choudhary, both of village-Rabda Tola Kewal, P.S.-Chainpur, District Palamau, were standing inside the courtyard. On seeing this, his wife started raising hullah (brawl) and crying, as it appeared that the accused, Sukul Choudhary had administered poison to her daughter. On hearing the hullah, by then, informant also reached there and on seeing the spoon in the hand of Sukul Choudhary snatched it from him, which was produced in the Police Station. Sukul Choudhary and other two co-accused, Nanhku Choudhary and Hardeo Choudhary fled away. On hearing the shouts (brawl), informant's younger brother, Garori Choudhary, uncle Bhawani Choudhary and Ramdeo and other villagers reached the place of occurrence. These two uncles and brother also saw the incidence. When informant, his wife and the other persons, who had arrived smelled the mouth of informant's daughter (Rudi Kumari), it had very obnoxious smell. His daughter was saying that she was having a bad taste in her mouth. Thereafter his daughter started trembling and passed away within half an hour. These two uncles and brother also saw the incidence. When informant, his wife and the other persons, who had arrived smelled the mouth of informant's daughter (Rudi Kumari), it had very obnoxious smell. His daughter was saying that she was having a bad taste in her mouth. Thereafter his daughter started trembling and passed away within half an hour. Saliva was coming out of her mouth. Informant further alleged that the curd kept in a utensil and water kept in the bucket inside the house, were also bearing obnoxious odour. He suspected that these things were also poisoned. He stated that there was some dispute. 4. On the basis of these allegations, informant has alleged that these accused persons had by administering poison to his daughter, Rudi Kumari caused her death. Informant inscribed his signature under fardbeyan and Bhawani Choudhary inscribed his left thumb impression as a witness thereto. Chainpur P.S. case No.144 of 1991 was registered on 15th August, 1991 at about 2.00 P.M. against these three accused persons namely, Sukul Choudhary (appellant), Nanhku Choudhary and Hardeo Choudhary under Section 328/302/34 of the Indian Penal Code. 5. After completion of the investigation, charge-sheet bearing no. 166 of 1991 dated 29.12.1991 under Sections 328/302/34 of the Indian Penal Code was submitted against all these three accused persons. 6. After cognizance, the case was committed to the Court of Sessions, where charges were framed only under Section 302/34 of the Indian Penal Code against the two accused persons, Nanhku Choudhary and Hardeo Choudhary while under Section 302 of the Indian Penal Code against the accused, Sukul Choudhary (appellant) on 7th July, 1993, which were read over and explained to them in Hindi, to which they pleaded not guilty and claimed to be tried. Thus, trial commenced. During the course of trial, eight prosecution witnesses were examined which are as under:- Yuvraj Choudhary as P.W.1, Prabhu Choudhary as P.W.2, Bhawani Choudhary as P.W.3, Ramdeo Choudhary as P.W.4, Murti Devi as P.W.5, Fuleshwar Choudhary as P.W.6, Dr. Birendra Prasad as P.W.7 and Satish Chandra Jha as P.W.8. 7. Thus, trial commenced. During the course of trial, eight prosecution witnesses were examined which are as under:- Yuvraj Choudhary as P.W.1, Prabhu Choudhary as P.W.2, Bhawani Choudhary as P.W.3, Ramdeo Choudhary as P.W.4, Murti Devi as P.W.5, Fuleshwar Choudhary as P.W.6, Dr. Birendra Prasad as P.W.7 and Satish Chandra Jha as P.W.8. 7. The prosecution has adduced certain documentary evidence up-to Exhibit-7 which were admitted without objection as under:- Signature of Yuvraj Choudhary (P.W.1) on the production list as Exhibit-1, signature of Prabhu Choudhary (P.W.2) on the production list as Exhibit-2, signature of Fuleshwar Choudhary (P.W.6) on the F.I.R. as Exhibit-3, Post mortem examination report as Exhibit-4, F.I.R. as Exhibit-5, seizure list as Exhibit-6 and Inquest report as Exhibit-7. 8. After closure of the prosecution evidence, the accused persons were examined under Section 313 of the Cr.P.C. to which they denied their involvement and claimed themselves to be innocent. The accused persons further stated that on account of some land dispute, they have been implicated in this case. Upon consideration of the submissions of the counsels for the parties and the material evidence on record, the learned court has convicted accused/appellant, Sukul Choudhary for the charge under Section 302 of the Indian Penal Code, but the learned Trial Court has acquitted the other two accused persons by granting them the benefit of doubt. 9. Learned Senior counsel for the appellant, Mr. A. K. Kashyap in support of challenge urged the following grounds ; he submits that the case of the prosecution is based upon the hypothesis of death of Rudi Kumari, daughter of the informant caused by the appellant by administering poison; the Medical evidence of P.W.7, Dr. Birendra Prasad, who conducted the autopsy on the dead body of the victim did not consider it proper to give any opinion as regards to the cause and nature of death in the absence of the chemical examination report of the forensic lab, Patna. The doctor did not find any external injury or internal injury on the deadbody. He preserved the viscera to find cause of death i.e. a portion of liver, one kidney, a portion of heart, a portion of lung, one kidney, a portion of spleen, stomach with its contents and a loop of intestine. The prosecution did not send the viscera for forensic examination nor the spoon allegedly used for administering poison. He preserved the viscera to find cause of death i.e. a portion of liver, one kidney, a portion of heart, a portion of lung, one kidney, a portion of spleen, stomach with its contents and a loop of intestine. The prosecution did not send the viscera for forensic examination nor the spoon allegedly used for administering poison. The curd or the water found in the utensil and bucket inside the informant's house were also not sent for forensic examination to prove the allegation of poisoning by the accused persons. The prosecution has tried to arraign the accused persons including appellant only on suspicion with a clear motive to implicate them on account of a pre-existing land dispute between the parties, which is evident from the deposition P.W.5 and P.W.6 both as well the statement of the appellant and other accused recorded under Section 313 of the Cr. P.C. The informant P.W.6 and his wife, P.W.5 both accept that the house of the appellant is in the same premises. There is existing dispute over land because the appellant is descendant from the brother of the maternal grand father of father of the informant. The informant has not seen the occurrence and has only stated in the fardbeyan or deposed on the basis of what his wife, P.W.5 has stated. P.W.5 claims to be an eye witness, who has seen the appellant administering poison like substance to her daughter, Rudi Kumari by a spoon but neither of these articles, spoon e.t.c. nor the poisonous substance have been proved by any forensic/scientific method on the part of prosecution. The learned court did not find it proper to frame charge under section 328 of the Indian Penal Code and in the absence thereof the prosecution could not have proved the death by poison. The very basis of the prosecution case i.e. death caused by administering poison substance does not stand established. If the main ingredient of the offence is not established mere ipse dixit statements of the prosecution witnesses could not be sufficient to convict the appellant for a serious charge of murder when there was pre-existing enmity due to land dispute between the parties. As such, the prosecution case there is no legal evidence to support the impugned finding. The evidence of the prosecution is not cogent or trustworthy to establish the guilt beyond shadow of all reasonable doubt. As such, the prosecution case there is no legal evidence to support the impugned finding. The evidence of the prosecution is not cogent or trustworthy to establish the guilt beyond shadow of all reasonable doubt. The appellant, therefore, deserves to be acquitted of the charges. The appeal may be allowed. 10. Learned Additional Public Prosecutor has placed before us the prosecution evidence on record at length. In order to support the findings of the learned trial court, he has led emphasis in particular on the deposition of P.W.5 (Murti Devi), the mother of the deceased girl and the informant, P.W.6 (Fuleshwar Choudhary). After placing their testimony, he submits that the credibility of P.W.5 as an eye-witness and the informant who arrived just after the incidence and supported the case of the prosecution, as made out, in the First Information story, is not open for any doubt to acquit the accused/appellant of the charges of murder of a six years old girl. Enmity cuts both ways. Therefore, the appellant cannot take benefit of a previous land existing dispute between the parties to allege false implication. The findings of the learned trial court are based upon consideration of the entire material evidence on record which do not suffer from any perversity in appreciation of evidence that may entitle the appellant for any benefit of doubt. The appeal is devoid of merit and is fit to be dismissed. 11. We have considered the submission of the learned Senior counsel for the appellant and learned Additional Public Prosecutor representing the State and gone through the materials evidence on record, including the fardbeyan, the framing of charge, the deposition of eight prosecution witnesses and seven prosecution exhibits, the statement of the accused/appellant under Section 313 of the Cr.P.C. and also perused the impugned judgment of conviction and order of sentence. We have carefully scanned the material evidence in entirety in order to deal with the case of the prosecution which was built upon a hypothesis of causing intentional death by administering poison upon the six years old daughter of the informant, Rudi Kumari. We find from the statement of prosecution witnesses that it is Murti Devi (P.W.5) who has claimed herself as sole eye witness that she reached her house at around 1.30 P.M. to have meal from the paddy field. We find from the statement of prosecution witnesses that it is Murti Devi (P.W.5) who has claimed herself as sole eye witness that she reached her house at around 1.30 P.M. to have meal from the paddy field. She has seen accused, Sukul Chaudhary administering a poison like substance to her daughter, Rudi Kumari by a spoon. Thereafter she has raised hulla and the informant (P.W.6) following her also reached and snatched away the spoon from the hands of the appellant, Sukul Chaudhary. The other prosecution witnesses, such as, P.W.3 (Bhawani Chaudhary), P.W.4 (Ramdeo Chaudhary) are persons who have reached the place of occurrence only after hearing a brawl or the shout. They have deposed what they have heard through the mouth of the informant or his wife, P.W.5 (Murti Devi). On the other hand, P.W.5, at Paragraph 11 of her deposition has stated that she has not narrated about the incidence to the co-villagers, who had reached the place of occurrence later on. As such, evidence of other prosecution witnesses will not improve the case of prosecution beyond what P.W.5 and P.W.6, the mother and father of the deceased are saying specially. In the present case, the prosecution had to establish the presence of poison as a cause of death. There were no internal or external injuries found on the dead-body of the victim, as per the medical evidence of P.W.7 (Dr. Birendra Prasad), who conducted the post-mortem upon Rudi Kumari, the victim. Post-mortem report proved by the P.W.7 as Exhibit-4 inter-alia recorded the following observations :- Post-mortem examination was done on the dead body of a Hindu female child, aged about 6 years. The eyes were closed, mouth partially closed and there was blood stained froath around the nostrils & mouth & the colour of the body was pale. There was no evidence of external or internal injury. Hence, following viscera were preserved for chemical examination to know the cause of death. (1) a portion of liver. (2) a portion of heart. (3) a portion of lung. (4) one kidney (5) a portion of spleen (6) stomach with its contents (7) a loop of intestine. No definite opinion as regard cause & nature of death can be given till the chemical exam. report comes from Forensic Lab. Patna. Time elapsed since death – 6 to 36 Hours. 12. (3) a portion of lung. (4) one kidney (5) a portion of spleen (6) stomach with its contents (7) a loop of intestine. No definite opinion as regard cause & nature of death can be given till the chemical exam. report comes from Forensic Lab. Patna. Time elapsed since death – 6 to 36 Hours. 12. We find that the prosecution perhaps did not send the viscera of the deceased to the Forensic Lab or has failed to bring on record any forensic report of the viscera of the deceased to prove that the victim died as a result of poison. We further find that the spoon alleged to be used for administering poison by the appellant or the curd and the water alleged to be poisoned inside the house of the informant were also not sent to the Forensic Science Laboratory or the F.S.L. report was not brought on record by the prosecution to prove that they carried poisonous substance. On the other hand, from the statement of P.Ws.5 and 6, both it is evident that the appellant's father, Sahdeo Chaudhary was a descendant of Kardhani who was brother of Akshaywar, the maternal grand-father of the informant's father. They had land dispute from before. It is also evident from the description of the place of occurrence both by P.Ws.5 and 6 that the appellant and the informant's house were common except that there was a partition in the house. The appellant had constructed a new house elsewhere, but he had the premises in the same house, as that of the informant. Therefore, the movement of the appellant from the same premises cannot be treated to be an incriminating material to derive an inference that he was instrumental in administering poison to the daughter of the informant for causing her death. He was also arrested from the same courtyard. We also find that no charges under Section 328 of the I.P.C. have been framed neither has the prosecution been able to substantiate existence of poison, in any of the articles, alleged to be poisoned or used for administering poison on the informant's daughter. In the absence of proof of poison, the entire hypothesis of the prosecution case to bring home the charge necessarily fails. In the absence of proof of poison, the entire hypothesis of the prosecution case to bring home the charge necessarily fails. On perusal of the impugned judgment, we find that though the learned court did take notice of absence of any forensic report about existence of poison either administered to the victim girl or in other articles like curd or water or the spoon used for administering poison but merely being guided by oral testimonies of P.W.5 and P.W.6 and other prosecution witnesses, who later on, arrived at the scene, came to completely fallacious conclusion that the charges of murder were established against the accused/appellant, Sukul Chaudhary. The learned trial court however, acquitted the other two accused persons, of the charge for the offence under Section 302/34 I.P.C. 13. On consideration of the entire evidence on record and in view of the aforesaid discussions, we are unable to sustain findings of the learned trial court, on any count. As such, we are of the opinion that the prosecution has failed to establish its case beyond shadow of all reasonable doubt. 14. Accordingly, impugned Judgment of conviction and order of sentence, both dated 20.07.1996, passed by the learned Sessions Judge, Palamau, in Sessions Trial No. 351 of 1992 is hereby set aside. 15. In the result, this appeal stands allowed. 16. Consequently, the appellant, who is on bail, is discharged from the liability of his bail bonds. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.