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2023 DIGILAW 128 (PAT)

Ramesh Choudhary v. State of Bihar

2023-01-23

CHAKRADHARI SHARAN SINGH, RAJESH KUMAR VERMA

body2023
Chakradhari Sharan Singh, J. – Heard Mr. Manoj Kumar Panday, learned counsel for the appellant and Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State. 2. By the impugned judgment of conviction dated 3006.2015 and order of sentence dated 3.7.2015 passed by learned 1st Additional Sessions Judge, Bhojpur at Ara in Sessions Trial No. 44 of 2013 arising out of Jagdishpur P.S. Case No. 196 of 2012 (G.R. No. 3373 of 2021), the appellant has been convicted and sentenced as under: – Conviction under Section Imprisonment Sentence Fine (Rs.) In default of fine 302 of the IPC Imprisonment for life 50,000/- S.I. for six months 3. A fardbeyan of the wife of the deceased, Sushila Devi (PW-2) recorded at Primary Health Center of Jagdishpur at 9:00 pm on 27.10.2012 by a Police Officer of Jagdishpur Police Station is the basis for registration of FIR. The present appellant is the own brother of the deceased. It emerges from the said fardbeyan that there was some dispute in relation to sharing the amount of old-age pension received by the mother of the deceased and the appellant. According to the fardbeyan, the appellant was an alcoholic. The fardbeyan further reveals that the deceased had three brothers; he himself, Nagina Chaudhary and the youngest, this appellant. Nagina Chaudhary was not living in the village for last two months as he had gone outside to earn livelihood. In the village, the deceased and this appellant were living separately from before. On the date of occurrence i.e. 27.10.2012, the appellant came to the house of the informant. He was severely drunk and entered into an altercation with the informant’s husband on the point of sharing the amount of the old-age pension of their mother. The appellant was not inclined to share any amount of pension with the deceased. This led to scuffle between them. The informant interceded and attempted to pacify the situation. In the meanwhile, the appellant, who was carrying a dagger in his hand assaulted the deceased with the dagger, in his abdominal area and rib-cage. During the course of the altercation when the informant attempted to pacify, she too was assaulted by the appellant with the dagger leading to injury in her right hand thumb. The deceased fell down on the road in front of the house and became unconscious. During the course of the altercation when the informant attempted to pacify, she too was assaulted by the appellant with the dagger leading to injury in her right hand thumb. The deceased fell down on the road in front of the house and became unconscious. The deceased was, thereafter, taken to a hospital, where he was declared brought dead by the Doctor. The fardbeyan to the aforesaid effect gave rise to the concerned Jagdishpur P.S. Case No. 196 of 2012. The receipt of the information in the Police Station has been recorded as 20:15 and time of registration of FIR as 23:30. Postmortem examination was conducted by the Doctor on 28.1.2012 at 7:55 am when following antemortem injuries were found: – “(1) Incise wound on left side of mid clavicular line at the level of the rib of the chest size 1½’’ X ½’’ X deep. (2) incise wound on left side of lateral opposite thighs size ½’’ X ½’’ (3) incise wound on right side of anterior of chest at the level of 10th rib size ½’’X ½’’ X deep. Internal Examination. – skull. Brain and meninges are pale and intact. Thorax. – both lungs pale and intact. Heart. – Left border of Heart lacerated and ruptured size 1 ½ X 1’’X deep into left side of cavity of heart. Abdomen. – liver pale and intact. Both kidney pale and intact, spleen pale and intact. Stomach contain small amount of semi digestive food materials, urinary bladder contain 10 ml of urine. Cause of death. – Due to Haemorrhage and shock. Leading to death cause by injury of vital organ like heart mention the above injury. Cause by sharp cutting weapon.” 4. The informant (PW-2) was examined by the Doctor on 27.10.2012 and found a lacerated wound on left hand thumb of the size 1’’ X 1/5’’, caused by a hard and blunt substance. 5. Upon completion of investigation, the police submitted its charge-sheet, whereafter, cognizance was taken. The case was subsequently committed to the Court of Sessions on 19.3.2013. Charges were framed for commission of offence punishable under Sections 302, 341 and 324 of the Indian Penal Code. The appellant denied the charges and accordingly opted to face the trial. 6. 5. Upon completion of investigation, the police submitted its charge-sheet, whereafter, cognizance was taken. The case was subsequently committed to the Court of Sessions on 19.3.2013. Charges were framed for commission of offence punishable under Sections 302, 341 and 324 of the Indian Penal Code. The appellant denied the charges and accordingly opted to face the trial. 6. At the trial seven witnesses came to examined including the informant (PW-2), her two daughters (PW-3 and PW-4), the Doctor who had examined the informant (PW-7), the Doctor who had conducted the postmortem examination as PW- 8, and the Investigating Officer as PW-9. PW-1 did not support the prosecution’s case and, therefore, came to be declared hostile at the instance of the prosecution. PW-5 proved the seizure list witness. PW-6 was a hearsay witness. 7. The prosecution proved at the trial, documentary evidence, namely, the signatures of Megh Nath Choudhary (PW- 1) and Santosh Kumar @ Soti (PW-5) as (Exhibits-1 and 3 respectively). The seizure list was exhibited as Exhibit-7, the postmortem report as Exhibit-5, the injury report of the informant as Exhibit-4, signature of the informant on the fardbeyan as Exhibit-2, inquest report as Exhibit-7. 8. According to the seizure list an old sharp-edged blood-stained dagger, an old sharp edged blood-stained fausli as well as blood-stained soil from the place of occurrence were said to have been seized. The place of seizure as described in the seizure list has been mentioned as the place in front of the house of the deceased near the doorway of the house. 9. After closure of the prosecution’s witnesses, appellant was examined under Section 313 of the CrPC. The Trial Court, after having considered the evidence of the prosecution’s witnesses has held the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and accordingly sentenced him to undergo imprisonment for life as noted above. 10. We have heard learned counsel appearing on behalf of the appellant and learned Additional Public Prosecutor for the State. In addition, learned counsel for the appellant has submitted written notes of argument. 11. Mr. Panday, learned counsel for the appellant has submitted that there are discrepancies between the ocular evidence and medical evidence. He has submitted that PWs. 3 and 4 have claimed to be the eye-witnesses and have deposed that the appellant had stabbed the deceased in his abdomen and rib area with knife. 11. Mr. Panday, learned counsel for the appellant has submitted that there are discrepancies between the ocular evidence and medical evidence. He has submitted that PWs. 3 and 4 have claimed to be the eye-witnesses and have deposed that the appellant had stabbed the deceased in his abdomen and rib area with knife. However, it is manifest from the postmortem report and deposition of PW-8 (the Doctor) that, three injuries were found on the person of the deceased but no injury was found on the abdominal area of the deceased. He has submitted with reference to the deposition of the Doctor (PW-8) that in a case of stabbing with knife, the nature of wound would be penetrating whereas all the three wounds of injuries found on the person of the deceased have been found to be incised wounds. He has submitted, with reference to the Modi’s Medical Jurisprudence and Toxicology (26th Edition) that had the injuries been caused by stabbing the same would have been penetrating wounds. He has placed reliance on the Supreme Court’s decision in case of Mohinder Singh vs. The State, AIR 1953 SC 414, to contend that it is the duty of the prosecution to prove by expert’s evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and the manner in which they were caused. He has further placed reliance on the Supreme Court’s decisions in case of Kartarey and Ors. vs. The State of U.P., AIR 1976 SC 76 and Ishwar Singh vs. State of U.P., AIR 1976 SC 2432 to submit, interalia, that as per the prosecution’s case two weapons seized by the police from the place of occurrence, one was a dagger and other a fasuli, both of which were used. However, throughout their evidence the informant (PW-2) and her daughters (PWs. 3 and 4) have deposed that only one weapon in the nature of dagger (chura)/knife (chaku) was used. He has further submitted that there being significant contradictions in the prosecution's evidence, prosecution’s witnesses do not appear to be reliable. On the point of time of occurrence itself there are material contradictions in the evidence of the prosecution’s witnesses who have claimed to be the eye-witnesses, he contends. To bolster his argument further he has submitted that whereas PW-2 deposed that the occurrence had taken place at 6:30 pm, PWs. On the point of time of occurrence itself there are material contradictions in the evidence of the prosecution’s witnesses who have claimed to be the eye-witnesses, he contends. To bolster his argument further he has submitted that whereas PW-2 deposed that the occurrence had taken place at 6:30 pm, PWs. 3 and 4 have stated that the occurrence had taken place at about 9:00 pm/9:30 pm. 12. Their evidence that the deceased was assaulted by the appellant with chura (dagger) in his abdomen and rib area stands completely falsified by the medical evidence, inasmuch as, the postmortem report discloses three injuries and no injury in the abdominal area. He has further submitted, referring to the evidence of the prosecution’s witnesses 2, 3 and 4, that according to them the appellant had assaulted PW-2 with chura when she had interceded causing injuries on her left thumb. In the fardbeyan, PW-2 had mentioned that she was hit with knife on her right thumb. Further, no injury caused by chura has been found in any of the thumbs of the informant(PW-2), rather the injury, which has been found in the left hand thumb of the informant, is in the nature of lacerated wound, caused by hard and blunt substance. It has also been submitted that at the maximum it can be said to be a case of sudden provocation starting with an altercation leading to scuffle between the appellant and the deceased. He has, however, submitted that the motive behind the occurrence as alleged in the fardbeyan in relation to certain dispute over sharing the pension amount of the mother of the appellant and the deceased appears to be artificial as it is clear from the fardbeyan itself that the money was lying with the appellant and in such circumstance there was not occasion for him to have entered into any altercation with the deceased and caused the injuries as asserted in the prosecution’s case. 13. Learned Additional Public Prosecutor appearing on behalf of the State, defending the finding recorded by the trial court has submitted that this Court may ignore trivial contradictions in the evidence of the eye-witnesses in relation to the time of occurrence. He has submitted that, it appears that PWs. 3 and 4, out of inadvertence mentioned 9:00 pm/9:30 pm as the time of occurrence, instead of 6:30 pm as was asserted in the fardbeyan by the informant (PW-2). He has submitted that, it appears that PWs. 3 and 4, out of inadvertence mentioned 9:00 pm/9:30 pm as the time of occurrence, instead of 6:30 pm as was asserted in the fardbeyan by the informant (PW-2). PW-2 has reiterated in her deposition that the occurrence had taken place at 6:30 pm. Her evidence is supported by the postmortem report. She is an eye-witness to the occurrence. Place of occurrence, he contends stands proved as blood-stained soil at the place of occurrence was found and small portion of which was seized by the police. Further from the place of occurrence the weapons used were also seized by the police. As there are eye-witnesses to the occurrence, the finding of conviction recorded by the Trial Court does not suffer from any legal infirmity, warranting this Court’s interference in the present appeal. 14. We have carefully gone through the judgment of conviction of the trial court and the evidence adduced at the trial in support of the prosecution. Be it noted that there are three persons who have claimed to be the eye-witnesses to the occurrence, namely, PW-2 (the informant and the widow of the deceased), PW-3 (daughter of the deceased) and PW-4(a daughter of the deceased). In the fardbeyan, the time of occurrence has been mentioned as 6:30 pm on 27.10.2020. In the first paragraph of her testimony, PW-2 (the informant) has deposed that the occurrence had taken place at 9:00 pm. She (the informant), however, corrected herself in her subsequent depositions reiterating that the occurrence had taken place at 6:30 pm. It is her evidence that she had interceded when the appellant and the deceased were fighting with each other, during which the appellant had given a knife blow on her right hand thumb. During her medical examination no injury was found on her right hand thumb. Injury was rather found on her left hand thumb in the nature of lacerated wound caused by hard and blunt substance (Exhibit-4). The injury which the informant is said to have sustained could not be said to have been caused by a sharp cutting weapons which were seized by the police as mentioned in the seizure memo. In such circumstance, PW-2 cannot be treated to be an eye-witness to the occurrence who had sustained injury during the course of occurrence. The injury which the informant is said to have sustained could not be said to have been caused by a sharp cutting weapons which were seized by the police as mentioned in the seizure memo. In such circumstance, PW-2 cannot be treated to be an eye-witness to the occurrence who had sustained injury during the course of occurrence. In her deposition at the trial, not only PW-2 but other prosecution’s witnesses, namely PW-3 and PW-4 have stated that an injury was caused in the left hand thumb of the informant by the appellant with knife. In such situation, we need to examine whether the eye-witnesses are truthful witnesses and whether their evidence is creditworthy or not. 15. As per the fardbeyan, the appellant was carrying a dagger in his hand. There is no reference to any other weapon which he was carrying and had used for assaulting the deceased. It is the case of the prosecution as disclosed by the Investigating Officer in his evidence that two sharp edged weapons (a dagger and a sharp edged fasuli) were recovered from the place of occurrence which were blood-stained. There were two weapons lying at the place of occurrence. We hasten to add here that the prosecution had not proved at the trial that the blood stains found over the soil and the weapons seized were of human blood or not much less matching of the same with the blood of the deceased. It is pertinent to note that PW-2 in her examination-in-chief reiterated that the appellant had assaulted her also with dagger. PW-3 in her deposition added improvement in the prosecution’s case by deposing that when she came out of her room after hearing some outcry, she found the appellant and the deceased fighting with each other. The appellant gave dagger blow in the abdomen and rib area of the deceased and when her mother went to save him, the appellant assaulted her mother (PW-2) with fasuli, which hit her left hand thumb. She described the time of the occurrence as 9:00 pm on 27.10.2012. PW-4 in her deposition mentioned 9:30 pm as the time of occurrence. She also introduced the story of the appellant carrying dagger and a fasuli with him which was not the case as originally disclosed in the fardbeyan or in the deposition of the informant (PW-2). 16. She described the time of the occurrence as 9:00 pm on 27.10.2012. PW-4 in her deposition mentioned 9:30 pm as the time of occurrence. She also introduced the story of the appellant carrying dagger and a fasuli with him which was not the case as originally disclosed in the fardbeyan or in the deposition of the informant (PW-2). 16. Considering the specific case of the prosecution that the FIR was registered at 8:30 pm itself, the depositions of PWs. 3 and 4 that the occurrence had taken place at 9:00 pm or 9:30 pm does not appear to be correct. In the Court’s opinion, their depositions raise a reasonable doubt as to whether they were the eye-witnesses. 17. Further, we find substance in the submission made on behalf of the appellant with reference to the medical evidence to the effect that the depositions of the prosecution’s witnesses are not supported by the medical evidence. There are three antemortem injuries found during postmortem examination. The postmortem report does not disclose any antemortem injury over the abdominal area of the deceased. PW-1, one of the seizure list witnesses has not supported the prosecution’s case and accordingly he came to be declared hostile at the instance of the prosecution. PW-5, is a seizure list witness who proved his signature on the seizure list. He deposed in paragraph 3 that his signature was obtained on a blank paper and he could not say as to what was written on the paper over which his signature was obtained. PW-6 is a hearsay witness and his evidence is therefore, not admissible. 18. Based on the close scrutiny of the evidence of the prosecution’s witnesses including the Investigating Officer, it is easily noticeable that the prosecution has not been able to explain three antemortem injuries on the person of the deceased as against the prosecution’s case, based on the eye-witnesses, that the deceased was assaulted by the appellant in his abdominal area and rib. Further, no antemortem injury has been found in the abdominal area. There is no scientific evidence on record to prove that the weapons seized by the police from the place of occurrence were used by this appellant for commission of the offence which he was charged with. Further, no antemortem injury has been found in the abdominal area. There is no scientific evidence on record to prove that the weapons seized by the police from the place of occurrence were used by this appellant for commission of the offence which he was charged with. It seems that no attempt was made at all to scientifically prove the appellant’s role in the use of the weapons seized from the place of occurrence. There is no scientific report on record to establish that the blood-stains recovered from the place of occurrence and available on the weapons were of human blood. All these circumstances taken together lead us to an irresistible conclusion that the prosecution failed to prove the place of occurrence and the manner of occurrence and thus the charge against the appellant of commission of murder of the deceased beyond all reasonable doubt. 19. It is trite that it is the duty of the prosecution to prove by scientific expert's evidence, use of weapon by an accused, if such weapon was seized by the police during the course of investigation. The weapons so seized were not produced during the course of trial as material exhibits. Had that been done, possibly the same could have been shown to him to elicit his information as to whether all or any of the injuries on the victim could have been caused by such weapon. 20. In view of the above noted discussions, in our opinion, the prosecution cannot be said to have proved its case against the appellant at the trial beyond all reasonable doubts. The evidence of the witnesses who have claimed to be eye-witnesses do not inspire much confidence. There is huge gap between the evidence of the so called seizure of the bloodstained weapons and soil from the place of occurrence and the appellant’s connection with the use of such weapons, in the absence of adequate connecting scientific evidence. Contradictions and inconsistencies in the evidence of the prosecution’s witnesses are writ large. Evidence of the prosecution’s witnesses do not appear to be reliable. It is strange to notice that two weapons were recovered from the place of occurrence at 10:45 pm. None of the eye-witnesses had deposed that the appellant had fled from the place of occurrence after leaving the weapons used by him at the place of occurrence. 21. Evidence of the prosecution’s witnesses do not appear to be reliable. It is strange to notice that two weapons were recovered from the place of occurrence at 10:45 pm. None of the eye-witnesses had deposed that the appellant had fled from the place of occurrence after leaving the weapons used by him at the place of occurrence. 21. We are accordingly of the view that the impugned judgment of conviction recorded by the Trial Court is not sustainable and deserves to be set aside. 22. As a result, the impugned judgment of conviction dated 30.06.2015 passed by learned 1st Additional Sessions Judge, Bhojpur at Ara in Sessions Trial No. 44 of 2013 arising out of Jagdishpur P.S. Case No. 196 of 2012 (G.R. No. 3373 of 2021), is set aside. Consequently, the order of sentence is also set aside. 23. The appellant stands acquitted of the charge of commission of offence punishable under Section 302 of the Indian Penal Code. 24. This appeal is allowed. 25. The appellant is in custody. Let him be released forthwith, if not required in any other case. Rajesh Kumar Verma, J. – I agree.