Patna High Court
Birendra Choudhary & Ors vs State Of Bihar on 17 July, 2009
Author: Navin Sinha
Bench: Navin Sinha, Dharnidhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
DEATH REFERENCE CASE NO.4 of 2008
The State of Bihar
Versus
Ram Kumar Choudhary & Anr.
With
Cr.Appeal No.63 of 2008(D.B.)
1. Ram Kumar Choudhary
2. Dhodho Choudhary @ Pritam Chodhary
Versus
The State of Bihar
With
Criminal Appeal No.166 of 2008(D.B.)
Birendra Choudhary and Ors
Versus
The State of Bihar
For the Appellants: (i) Sri Rana Pratap Singh, Sr. Adv.
(ii) Mr. Sumant Singh, Adv.
(iii) Mr. Aaruni Singh, Adv.
For the State: (i) Mr. Lala Kailash Bihari, Sr. Adv.
PRESENT
HON'BLE MR. JUSTICE NAVIN SINHA
HON'BLE MR. JUSTICE DHARNIDHAR JHA
JUDGEMENT
Navin Sinha, J.
The present two Appeals arise out of the
judgement and order of conviction dated 10.1.2008 of
the Additional Sessions Judge, (Fast Track Court No.5),
Banka in Sessions Trial No.024/2000. The appellants in
Cr. Appeal No.63/08 were found guilty and have been
sentenced to capital punishment under Section-302/34
of I.P.C. giving rise to Death reference case No.4/08.The
appellants in Cr. Appeal No.166/08, likewise, have been
sentenced to undergo life imprisonment under Section-
302/34 of I.P.C. Appellant No.1 in the latter appeal is
stated to have been deceased during pendency of the
2
appeal on 15.6.2009, as stated on oath by his son. The
appeal, therefore, abates against the deceased appellant
only.
The prosecution case was initiated on the
Fardbayan of P.W.3, Ramanand Choudhary, son of the
deceased Nakul Prasad Choudhary recorded at village
Dera, by the Sub-inspector, Banka police station on
28.8.1999 at about 10.15 p.m. He stated that he was
returning to his village-Dera (Choudhary Mohalla) from
the Cotigandha Jaggery Mill, along with his father.When
they reached near his "Gohal" (cowshed) at about 8.30
p.m., the accused who lay in wait for them, surrounded
the two. The two appellants in Cr. Apeal No.63/08 were
alleged to be armed with a "Fasiani" (sickle). Accused
Surendra Choudhary ordered to catch the two and teach
them a lesson for fighting litigations. The accused
persons threw his father, Nakul Prasad Choudhary, on
to the ground. Accused Birendra Choudhary and
Surendra Choudhary caught the hands of his father
while accused Bulchul Choudhary and Manoj
Choudhary held his feet. Bikram Choudhary and Umesh
Choudhary pressed down his knees. Ram Kumar
Choudhary and Dhodho Choudhary, who were both
armed with sickle, made repeated attacks on the neck of
his father resulting in cutting of the neck and death on
3
the spot. The accused tried to catch him also, when he
ran away shouting. The accused then went away towards
the Odni river. The villagers came on hearing the
commotion. The cause of occurrence was the existing
land-dispute between the parties. Twice earlier, the
accused had attempted murderous assault on his father
for which police cases had been lodged.
The F.I.R. was registered the same day i.e.
28.8.1999, at 11.45 p.m. The inquest report was
prepared on 28.8.1999 itself at 10.15. p.m. for recovery
of the body from village-Dera, Mohalla Choudhary at the
eastern end of the village the same day. Blood stains
were noticed on the clothes worn by the deceased and he
appeared to have been assaulted by a sharp cutting
weapon on his neck. The body was received for post
mortem at the Sub-divisional Hospital, Banka at 9.00
a.m. on 29.8.1999 which noticed the following ante
mortem injuries:-
(i) An incised wound of size 6"x4"x4" in
front of the neck, as well as on the left
side of the neck cutting important
structures like Trachea, arteries, veins
etc. It was caused by sharp cutting
weapon;
(ii) An incised wound of size 1"x1/2"x1" on
4
the left side of the cheek. It was caused
by sharp penetrating weapon. The
cause of death was ascribed to shock
and haemorrhage due to the above
mentioned injuries with the time
elapsed since death approximately 20
hrs.
The investigation by the police commenced
and charge-sheet came to be submitted under Sections-
302/34 of I.P.C.
The prosecution examined 6 witnesses.
P.W.1 Arjun Choudhary is the brother of the deceased
Nakul Prasad Choudhary. P.W.2 Bhudeo Thakur is a
villager. P.W.3 Ramanand Choudhary is the informant
and son of the deceased. P.W.4 Amod Prasad Choudhary
is the son of P.W.1. and nephew of the deceased. P.W.5 is
the doctor who conducted the post mortem examination
while P.W.6 was a formal witness who proved the
fardbeyan and the first information report.
P.W. 1 stated that he was an eye-witness to
the occurrence when the appellants surrounded the
deceased and P.W.3. Appellant Surendra Choudhary
ordered to kill Nakul Choudhary as he was fighting too
much litigation. The appellants caught hold of and
pinned down the deceased who died on the spot by
5
reason of the assault on his neck by the two appellants
in Cr. Appeal No.63/08. P.W.2 stated that he saw the
appellants running away from the place of occurrence
and on reaching saw that Nakul Choudhary had died
because of the cut on his neck. P.W.3 is stated to be an
eye-witness to the assault accompanying the deceased
Nakul Prasad Choudhary. He reiterated his statement in
the fardbeyan of the manner in which the appellants
pinned down the deceased when the two appellants in
Cr. Appeal No.63/08 assaulted on the neck 3-4 times
causing his death. He further stated that appellant
Santosh Choudhary stood near the witness during the
assault and warned him not to make noise upon threat
of being killed. He identified all the appellants in the
dock and stated that he recognized all of them who were
his agnates and cousins. P.W.4 stated that he saw the
appellants running away from the place of occurrence
and identified them in the torch-light and moon-light. All
the witnesses have stated of long standing enmity
between the parties with regard to lands and series of
litigations. P.W.5, the doctor who conducted the post
mortem examination, stated that the injuries were
sufficient in the ordinary course of nature to cause death
and that the time elapsed since death at the time of post
mortem examination was approximately 24 hrs.
6
The defence examined 7 witnesses. D.W.1,
Bhuneshwar Yadav stated that he was a resident of
village- Leelabharan and recognized P.W.1 Arjun
Choudhary who also stays at village- Leelabharan for the
last several years and that their houses were in
proximity and they were on visiting terms. D.W.2 Nrit
Narain Manjhi stated that at about 9 to 10 p.m. on the
date of occurrence, the son of the deceased Nakul
Choudhary along with 2 to 4 others called him when
they together went to village- Leelabharan to bring P.W.1
Arjun Choudhary and informed the latter there, of the
assault upon his brother. He also stated of long standing
enmity between the parties with regard to lands and
litigations. D.W.3 Jagal Yadav stated that he resided at
village-Leelabharan where P.W.1 also resided. Their
houses were in proximity and they were on visiting
terms. On the date of occurrence at about 9 to 10 p.m.
he was at the house of Arjun Choudhary, P.W.1. On
being informed of the death of his brother in the
presence of the witness, Arjun Choudhary, P.W.1 then
proceed to village- Dera. D.W.4 Bhagirath Manjhi stated
that on commotion he came out of his house when he
learnt that Nakul Choudhary had been killed. On
enquiry P.W.3 Ramanand Choudhary stated that he did
not know who had killed. D.W.5 Jai Prakash Singh
7
stated that he heard commotion in the village when he
learnt later that Nakul Choudhary had been killed.
D.W.6 Bideshi Yadav stated that he had heard that the
deceased had been killed. D.W.7 Rajendra Prasad Sah
stated that he is not aware how Nakul Choudhary died
and no one told him the name of the assailants.
The prosecution relied on Ext.1, the
signature of P.W.3 on the fardbeyan, the post mortem
report at Ext.2, a certified copy of the judgement of
complaint case No.C-102/1995 at Ext.3, the formal
F.I.R. at Ext.4 and the fardbeyan of the informant/P.W.3
at Ext.5. The defence relied upon Ext.A, certified copy of
the deposition of Amod Prasad Choudhary, P.W.4 in
Complaint Case No.C-102/1995, Ext.A/1, certified copy
of the deposition of Bhudeo Thakur, P.W.2, in Complaint
Case No.C-102/1995, Ext.A/2, certified copy of the
deposition of Bhudeo Thakur in Complaint Case No.C-
102/1995 dated 15.2.1996. Ext.A/3, certified copy of the
deposition of Amod Choudhary, P.W.4 in Complaint Case
No.C-102/1995. Certified copy of the charge-sheet in
Banka P.S. Case No.64/1997. Certified copy of charge-
sheet and order of cognizance in Banka P.S. Case
No.30/1999, apart from certain other documents
including of proceedings under Sections-144 and 145
Cr.P.C. in the land-dispute between the parties.
8
Learned Senior Counsel Shri Rana Pratap
Singh appearing on behalf of the appellants submitted
that no case for imposition of capital punishment on the
two appellants in Cr. Appeal No.63/2008 is made out. In
fact, no case for the conviction of any of the appellants
under Section-302/34 of I.P.C. is made out. It was
submitted that P.W. 1 Arjun Choudhary being the
brother of the deceased was an interested witness. His
evidence was to be considered with great caution
considering the existing enmity and litigations between
the parties. He was, in fact, not an eye-witness to the
occurrence and at the relevant time was at village-
Leelabharan, 3 kilometres away where he resided with
his son Amod Prasad Choudhary, P.W.4. In support of
the submission strong reliance was placed upon the
deposition of P.W. 4 in Complaint Case No.C-102/1995
between the parties both before and after charge made
on 2.4.1997 and 17.8.2000 respectively, indicative of
continuity that his father resided with him at village-
Leelabharan. P.W.1 himself, in his statement under
Section-161 Cr.P.C., at paragraph-50 of the case diary,
had stated that he was at village-Leelabharan and came
to village- Dera after hearing of the occurrence. He was
now falsely claiming himself to be an eye-witness.
Confronted with his statement made under Section-161
9
Cr.P.C., he denied having given any such statement to
the investigating officer. In that background, the failure
of the prosecution to produce the investigating officer for
examination has caused serious prejudice to the defence.
Bhagirath Choudhary, D.W.4, whose house is near the
place of occurrence and was a charge-sheet witness
whose statement was also recorded under Section-161
Cr.P.C., was not examined but deposed as D.W.4 that
P.W.3 had told a different story to him. Again the non-
examination of the investigating officer has caused
serious prejudice to the appellants. Sahdeo Choudhary,
whose house was also near the place of occurrence, has
also not been examined. While P.W.1 denied that any
explosives case was lodged against the deceased and
P.W.3, the fact of the matter was they were charge-
sheeted and cognizance taken against them under
Sections- 3, 4 and 5 of the Explosive Substances Act in
Banka P.S. Case No.30/1999. The aforesaid police case
was evidence of the criminality in conduct of the
deceased and his son, P.W.3. The witness admits land-
litigation-enmity between the parties. It was, therefore,
urged that he was not an independent witness whose
testimony could be relied upon as he was stating
falsehood, being an interested witness, as brother of the
deceased.
10
P.W.2, Bhudeo Thakur himself stated that he
was not an eye-witness to the assault, but allegedly saw
the appellants running away from the place of
occurrence when the deceased was writhing at the door
of Sahdeo Choudhary because of the injuries on his
neck. Yet he states that his statement was recorded by
the investigating officer two days later without any
explanation for the delay. He did not state that the two
appellants in Cr. Appeal No. 63/08 were armed in any
manner. In fact, in his statement under Section-161
Cr.P.C. at para-53 of the case diary he had described
himself as a hear-say witness. From Ext.A/1, A/2 and
C/2 it was submitted that he was a stock witness on
behalf of the deceased Nakul Choudhary in the inter se
litigations between the prosecution and the accused.
There is no statement by him to the police of the source
of light for identification of the appellants at 8.30 p.m.
Both, for reason of non-examination of the investigating
officer and being an inimical witness, no reliance could
be placed upon his deposition.
P.W.3, the informant, was urged not to be an
eye-witness also. In any event, being the son of the
deceased, he was an interested witness stating falsehood
and was unreliable. He acknowledged that a Complaint
Case No.64/1997 had been filed by his father under the
11
Indian Penal Code and the Explosive Substances Act
against some of the appellants. He falsely stated that
final report was submitted in Banka P.S. Case
No.30/1999 when, in fact, charge-sheet was submitted
and cognizance taken against the witness and the
deceased. His evidence on the manner of assault on the
deceased is not consistent with the post mortem report.
While he alleges 3 to 4 assaults on the neck, there was
only one injury on the neck and one on the cheek.
Likewise, he states that there was no penetrating injury
by sharp weapon. The post mortem report is of a sharp
penetrating wound on the cheek. If the deceased had
been pinned down, as is alleged, he would have surely
wriggled to save and set himself free, a natural human
instinct. This would have caused further injuries on his
person by reason of such struggle, but there is none.
Contrary to his statement in court that at the time of
assault accused Santosh Choudhary threatened to kill
him if he made noise, in his fardbeyan he made no such
statement. The witness, however, insisted that he had
written so in his fardbeyan. In absence of the
examination of the investigating officer, the appellants
have been prejudiced on that score. It was not a natural
conduct of the witness not to have made any noise at the
time of assault, but only subsequently. No explanation
12
has been given why Anant Choudhary at whose place the
deceased lay when the police came was not examined
and neither was Sahdeo Choudhary, whose house was
near the cowshed. There has been no seizure of the
weapon of assault, the blood stained clothes or the blood
soaked earth. There is no material on record of any
efforts made for the purpose by the prosecution. Again
the lack of opportunity to cross-examine the
investigating officer by the failure of the prosecution to
produce him has caused serious prejudice. It was evident
that the assault did not take place near the cowshed as
the body was found at the door of Anant Choudhary. If
the deceased had been dragged/ carried, surely, there
should have been trace of blood. The witness stated that
it was raining at the time of occurrence. Hence,
identification by moon-light was not possible. The
submission, therefore, was that though P.W.3 claims
himself to be an eye-witness, he was the son of the
deceased admitting previous enmity between the parties
and, therefore, an interested witness. In view of the
falsity in his depositions he was an unreliable witness.
He did not disclose any source of light for identification
of the appellants in the night at 8.30 p.m.
P.W.4 Amod Prasad Choudhary was not an
eye-witness to the assault but stated that he saw the
13
appellants running away in the moon-light and torch-
light. This statement was made only after the
prosecution realized its error in the earlier three
witnesses not stating anything about the source of light
for identification of the accused. He has himself stated in
his deposition at Ext.A/3 in Complaint Case No.C-
102/1995, both prior to the charge in 1997 and after
charge in the year-2000, indicative of continuity that he
resides at village-Leelabharan. He was now trying to
make out a new case of being an eye-witness, residing at
village-Dera at the time of occurrence. While he states
that he is not aware that the daughter of the appellant
Umesh Choudhary namely Reeta Devi had filed a case
against him and his father, P.W.1, the latter in his
evidence had specifically admitted the institution of G.R.
No.1102/88 against them. In his deposition he states
that it had stopped raining at 9.45-10.00 p.m. The
question of identification in the moon-light during the
rains, therefore, does not arise. He did not remember if
he had told the investigating officer in his statement
under Section-161 of Cr.P.C. that he had identified the
appellants in the torch-light. He refers to the house of
other villagers in the vicinity, but does not give any
explanation why they have not been examined. The
submission, therefore, was that he was stating
14
falsehood, was not an eye-witness and came to village-
Dera only after being informed of the occurrence. Being a
relative and interested witness he could not be relied
upon.
It was next submitted that in the facts and
circumstances of the case the non-examination of the
investigation officer had caused serious prejudice to the
appellants. In the absence of the investigating officer the
court could have relied upon the statements of
prosecution-witness under Section-161 Cr.P.C.
especially when they had been confronted with their
statements in absence of the investigating officer
forthcoming. Reliance was placed on 2008 AIR S.C.W
6050 (Bachchan Singh versus State of Bihar). It was
further submitted that the F.I.R. though stated to have
been registered on 28.8.1999 at 11.45 p.m. and sent to
the Magistrate on 29.8.1999, was, in fact, so received on
30.8.1999. This delay, when the police station and the
court were in close proximity, vitiates the prosecution,
giving enough time for embellishments. The inquest
report dated 28.8.1999 does not bear the F.I.R. number
and no F.I.R. was registered till 29.8.1999 as the post
mortem report states that no F.I.R. number was
mentioned. The submission, therefore, was of false
implication by unreliable and interested witnesses only
15
in the background of previous enmity and litigations
between the parties and, therefore, it could not be said
that the allegations had been proved beyond all
reasonable doubt. The death had taken place in another
manner by others for which the appellants were falsely
being made answerable.
Learned Senior Counsel Shri Lala Kailash
Bihari Prasad, appearing on behalf of the State,
submitted that in a charge under Section-302/34 of
I.P.C. individual acts of assault were hardly relevant.
Relying upon 1998 (6) S.C.C. (Crl.) 50 ( State of Uttar
Pradesh versus Harban Sahai and Others) it was
submitted that the promptitude with which the
fardbeyan was made gives strength to the case making
the allegations true. Relying upon 1999(1) P.L.J.R. 325
(Gulab Sain and others versus The State of Bihar &
Others) it was submitted that the delay, if any, in
sending the F.I.R. to the Magistrate was not fatal. The
lapses on the part of the investigating officer in not
mentioning the details of the F.I.R. in the inquest report
sent for purposes of post mortem was not fatal to the
case of the prosecution, but was at best a procedural
irregularity only which cannot be said to have caused
any prejudice to the defence. It was submitted that even
if this Court were to hold that the testimony of P.Ws.1, 2
16
and 4 was not trustworthy, the fact that P.W.3 may be
an interested witness was hardly relevant if his
deposition was otherwise convincing, cogent and
truthful. P.W.4 has stated of the existence of moon-light.
P.W.3 was an eye-witness. Reliance was placed on
2006(3) S.C.C.(Crl.) 503 (S. Sudarshan Reddy & Others
versus State of Andhra Pradesh) on the ocular capacities
for identification of the appellants at night when the
deceased was an own Gotiya (agnate) in the background
of land-dispute and existing litigations between them.
Reliance was further placed on 2001(4) P.L.J.R. 123
(S.C.) (Ram Ghulam & Others Versus State of Bihar) on
the difference in powers of ocular vision at night between
a town dweller and a villager. Appellant Santosh
Choudhary had spoken at the time of occurrence and his
voice was itself a source of identification. Any partial
deficiency in the evidence of P.W.3 would not vitiate that
part of his evidence on the assault which was otherwise
credible. Relying upon 1998 (6) S.C.C. (Crl.) 240 (State of
Bihar versus Ram Padarath Singh) and 1997(3) Cri.L.J.
2983 (Mithilesh Upadhyay Versus The State of Bihar), it
was submitted that the so called variation, if any,
between the medical evidence and the oral evidence by
P.W.3 was hardly relevant so long as injuries on the
person of the deceased on the portion of the body alleged
17
was found. The failure to examine those residing in the
vicinity is not relevant when P.W.3 has given cogent and
convincing evidence. For the same reason, the non-
examination of the investigating officer was not fatal and
had caused no prejudice to the accused. From the cross-
examination of D.W.4 it was evident that he was not
speaking the truth when he stated that prior to his
deposition in the court he had not given any statement to
the police. It is the case of the appellants themselves that
in pursuance of his statement to the police he was made
a charge-sheet witness. The witness does not disclose
even the name of any villagers. The witness was,
therefore, wholly unreliable and had been set up. The
conviction of the appellants under Section-302/34 of the
Indian Penal Code was, therefore, in consonance with
law and requires no interference to that extent.
The Court has considered the materials on
record, the depositions of the witnesses and the
submissions of the parties.
The prosecution and the defence are stated
to be agnates with admitted long standing enmity
between them in a land-dispute with more than one
litigation against each other. These litigations were
pursued earlier by the uncle and father of P.W.3, and for
the last three years were being pursued by the witness.
18
The relationship between the prosecution-witnesses has
been adequately noticed herein above. To that extent,
they are interested witnesses and the possibility of
implication can well be a ground. Therefore, the evidence
of the prosecution-witnesses shall have to be understood
and scrutinized with caution. It is not that the evidence
of an interested witness cannot be accepted and has to
be rejected outright. In many cases independent
witnesses may not be available and it may be only the
relatives who may be available as witnesses. Moreover, it
would primarily be the relatives of the deceased who
would be keen to bring the real offenders to book. The
contention of the appellants that in the absence of
independent witnesses who were available in the vicinity,
but whose statements were not recorded and who have
not been examined, discredits the interested witnesses
cannot be simply brushed aside. Each case shall have to
be judged on its own facts. The case of Ram Padarath
Singh (supra) (1998)6 S.C.C. 240 relied upon by the
State appears to be different on facts inasmuch as there
was nothing on record and there was no evidence of the
presence of any other person at the time of occurrence.
The Court, therefore, could not assume and proceed on
the basis that independent witnesses must have been
available and yet were not examined by the prosecution.
19
In the case of Sudarshan Reddy(Supra)
2006(3) S.C.C. (Cri.) 503, relied upon by the State it has
been held at paragraph-12 that relationship alone cannot
be a factor to affect the credibility of a witness. More
often than not a relation would not conceal the actual
culprit and make allegations against an innocent person.
A foundation has to be laid to establish a plea of false
implication. In such cases, the Court has to adopt a
careful approach and analyse evidence to find out
whether it is cogent and credible. It was the duty of the
court to separate the grain from the chaff.
Examining the evidence of P.Ws.1, 2 and 4
on that standard, this court finds from a conjoint
reading of the evidence of the prosecution and defence
witnesses that P.W.1 is not a truthful and reliable
witness. His testimony of presence at village-Dera on the
day of occurrence is contradicted by his own son, P.W.4,
and by more than one defence witness. His denial with
regard to Banka P.S. Case No.30/1999 of the
involvement of the deceased and P.W.3 cannot be lost
sight of. This Court finds him to be an interested
witness, not present at the time of occurrence but
seeking to make out a case to that effect in the court.
P.W.2 is not an eye-witness to the assault. This Court
finds it difficult to accept his evidence of having seen the
20
appellants running away from the place of occurrence.
Quite obviously, he saw the appellants from a distance
and not in close proximity and in the absence of any
source of light for identification and the two appellants
carrying any weapons, the witness being a stock witness
for the prosecution in more than one litigation and his
delayed statement to the police two days later without
any explanation, all discredit him as an independent
witness. P.W.4,who states to have seen the appellants
running away, no doubt, tried to create a theory of
moon-light or the torch light at the belated stage. But,
from his own evidence in Complaint Case No.C-
102/1995 at Ext.A/3 he was not present in village-Dera
but was at village-Leelabharan and came there
subsequently. He denies any case by Reeta Devi against
him and his father, P.W.1, but the latter acknowledges
that she was his grand daughter and had filed a case.
The Court is, therefore, satisfied that he is not telling the
truth and cannot be relied upon as an interested
witness.
P.W.3, the son of the deceased has claimed
himself to be an eye-witness. He states of enmity and
litigation between the parties. He also states that for the
last three years he was looking after the litigations. Quite
obviously, he was now the thorn in the flesh for the
21
appellants. No useful purpose would have been served of
the appellants by killing his father alone as in that event
the witness would have still continued to pursue the
litigation. This Court finds it difficult to accept that
notwithstanding the same, the appellants asked P.W.3 to
stand aside, assaulting his father alone. The witness
states in the fardbeyan that accused Santosh Choudhary
shouted to kill them all. But, in his deposition in Court,
the witness states that Santosh Choudhary asked him to
stand aside and not to make any noise, lest he should
meet the same fate as the deceased. This appears to be
highly unnatural conduct attributed to the appellants by
the witness. P.W.3 states that the nine appellants
surrounded the deceased and asked the witness to stand
aside. If the deceased was surrounded by the accused,
there was no occasion for the witness to view the assault
with such great clarity as narrated by him. Quite
naturally, his vision of the actual assault was hindered
by the appellants having surrounded the deceased. The
witness alleges 3 to 4 assaults on the deceased. The post
mortem report finds 1 incised wound in the neck and 1
incised wound on the left side of the cheek only. The
ocular evidence and medical evidence of the assault are
therefore at variance with each other. The case of
Mithilesh Upadhyay (Supra)1997(3) Cri.L.J. 2983 relied
22
upon by the State was a case of 2 firearm injuries in an
allegation of firing in quick succession by 3 persons. The
fact that firing by one may have missed was held to be
irrelevant. The case is clearly distinguishable on facts.
The occurrence is stated to have taken place
at 8.30 p.m. in the night. The witness himself states that
it was raining at that time. P.W.4 stated that it stopped
raining at 9.45-10.00 p.m. The fact that it was raining
leads to the conclusion of a clouded sky without moon
light or the light of the stars. The darkness of the night
shall affect visibility by itself. The rains shall further
affect visibility. Recognition by silhouette, even of a co-
villager, cannot be accepted with certainty. There are no
allegations of recognition by voice. In the absence of any
statement of the source of light for identification, the
case of Ram Padarath Singh (Supra) relied upon by the
State of the possibility of some confusion by the witness
in a case of assault by the accused surrounding the
witness, and that the same shall not affect the credibility
of the witness has no relevance in the facts of the present
case.
It was only as an afterthought to fill up the
lacunae in the prosecution case that P.W.4 sought
to introduce the theory of moon-light and torch-light.
None of the other witnesses have spoken of any source of
23
light. The case of Ram Gulam Choudhary (Supra) 2001
(4) P.L.J.R. 123 (S.C.) and Nathuni Yadav,( AIR 1997 S.C.
1808) relied upon therein if of no avail to the prosecution
as they were not cases of a dark rainy night without
moon-light, stars or any other light howsoever weak for
identification.
The identification by P.W.3 of the appellants
in the dock is hardly relevant considering that they are
agnates and there was an admitted enmity and litigation
between them.
This Court further finds the conduct of
P.W.3 at the time of occurrence highly unnatural. Even if
the deceased had been surrounded by the appellants and
felled to the ground, surely, in normal course of human
conduct P.W.3 would not have stood by silently and
watched the assault. It is not his case that he was
confined by any of the other appellants or held at the
point of arms. If the deceased had been surrounded and
was being assaulted, surely, the witness would have
shouted for help or in any event run away immediately
either to seek help or to save himself from a followed
assault after dealing with the deceased.
The deceased is stated to have been felled on
the ground and pinned down. The normal human
reaction of such a person would have been to free
24
himself and escape the assault. This would have led to a
scuffle. If the deceased was struggling on the ground,
surely, there would have been scratches or bruises on
his body. His clothes may have suffered tear also. Such
is not the case of the prosecution at all which raises
doubts also.
The deceased is stated to have been
assaulted at his „Gohal‟ (cowshed). P.W. 3 states that the
body was lying at the „Adda‟ of Anant Choudhary when
the police came. The inquest report states that the body
was lying at the eastern end of village- Dara, Mohalla
Choudhary Tola. The prosecution has given no
explanation whatsoever how, why and when the dead
body was moved and by whom. The witness has stated of
the clothes of the deceased being soiled by blood. But, no
signs of blood are stated to have been found at the place
of occurrence or in between the place of assault and
where the body was found. Surely, if the body was
shifted, there had to be marks of dragging or at least of
blood from a freshly assaulted bleeding person. No
blood-soiled clothes of the deceased were given to the
police as stated by P.W.3 himself. No weapon of offence
has been seized. The case of Harban Sahai (Supra) is
clearly distinguishable on facts as in that case blood-
stained earth was seized by the police. The only lacuna
25
was that it was not sent to the chemical examiner to test
the origin of the blood.
Anant Choudhary at whose door the body of
the deceased had been kept has also not been examined
and no reason has been given by the prosecution for the
same.
The assault is stated to have taken place on
28.8.1999 at 8.30 p.m. The fardbeyan of P.W.3 was
recorded at village-Dera at 10.15 p.m. The inquest report
was prepared on 28.8.1999 at 10.15 p.m. The F.I.R. was
registered the same day at 11.45 p.m. The body was sent
for post mortem examination to the Sub-divisional
Hospital, Banka at 9.00 a.m. on 29.8.1999. The F.I.R.
was forwarded to the concerned Magistrate on
29.8.1999, stated to have been received on 30.8.1999.
The argument of Shri Singh, for the appellants, that the
fardbeyan was, in fact, not recorded at 8.30 p.m. on
28.8.1999 and no F.I.R. registered as in that event the
inquest report would have borne the number of the F.I.R.
which finds no mention in the post mortem report dated
29.8.1999 suggestive of the absence of any fardbeyan or
the F.I.R. till the stage of the body being sent for post
mortem cannot be ignored. The case of Gulab Sain,
1999(1) P.L.J.R. 325 relied upon by the State was
different on facts inasmuch as no F.I.R. had been
26
registered formally and in which background the
Supreme Court held in the relevant extract of the
judgement at paragraph-5 as follows:-
"5. ...As a matter of fact when the
police officer takes up the investigation
in a case in anticipation of registration of
the case, he leaves scope for mentioning
the number of police case on the papers
and subsequently, it is mentioned on the
papers which is necessary for the
purpose of connecting the papers with
the case. It does not indicate that
actually such mentioning of number of
police case indicate some
manipulation...".
In the present case, the F.I.R. was registered
on the date of occurrence itself and the dead body sent
for post mortem the next day. Quite naturally, the
inquest report should have borne the number of the
F.I.R. Thus, there was no occasion for the post mortem
report to state that the police case number was not
mentioned in the dead body challan/inquest report. The
fact that while forwarding the dead body for post mortem
the next day, no details of the F.I.R. registered the
previous day were incorporated makes it highly probable
of the F.I.R. being an afterthought in the facts and
circumstances of the case. This probability is further
weighted by the fact that the F.I.R. registered on
28.8.1999 has been sent to the Magistrate on 30.8.1999.
This delay by itself, perhaps, may have been overlooked
27
by the court as not being unreasonable. But, when the
allegations are of antedating, false implication, admitted
previous enmity between the parties and the credibility of
witnesses is not to the satisfaction of the Court, there are
unexplained links in the case of the prosecution, even
this delay becomes relevant.
In (2002) 1 S.C.C. 487 (Thanedar Singh vs.
State of M.P.) the occurrence was in the night of
18.5.1982/19.5.1982. The F.I.R. was received by the Magistrate on 21.5.1982. The Apex Court noticed as follows in the relevant extract of paragraph-5.2:-
"5.2......It is significant to note that the crime number/F.I.R. number is not to be found in the inquest report (P-6), site plan (P-5) or (P-8) which is a requisition sent to the hospital for post mortem. No reference whatsoever is made in Ext.P-6 about the information, if any, furnished by P.W.8 or P.W.6. All this would support the defence version that F.I.R. (P-10) in which the names of the accused were mentioned would have probably come into existence much later"...
In the present case also, in the inquest report no names of the appellants have been mentioned in either Colmn.6, 8 or 9. If the appellants were the assailants identified by P.W.3, surely, the inquest report was the first stage for recording such disclosure of names of the assailants. This casts serious doubts on the case of the prosecution as alleged.28
The Court, therefore, on a consideration of the entirety of the matter is not satisfied that the case has been proved beyond all reasonable doubt that the occurrence took place in the manner as alleged, committed by the appellants alone. The unexplained issues, in the case of the prosecution, raise serious doubts on the possibility of an occurrence having taken place in some other manner, at some other place, committed by some other persons. The possibility of false implication cannot be ruled out completely.
This Court, therefore, finds the conviction and sentence of the appellants wholly unsustainable. It is accordingly set aside and the appellants are acquitted.
The appellants Ram Kumar Choudhary and Dhodho Choudhary @ Preetam Choudhary, who are in custody, are directed to be released forthwith, if not wanted in any other case. The rest of the appellants, who are already on bail, are discharged from the liability of their bail-bonds.
( Navin Sinha, J.) Dharnidhar Jha, J.
(Dharnidhar Jha, J.) Patna High Court, Dated: 17th of July, 2009.
N.A.F.R./ KC/ 29