Patna High Court
Raj Narayan Thakur vs The State Of Bihar on 3 January, 2012
Author: A.K.Lal
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.430 of 1989
(Against the judgment of conviction and sentence
dated 6.09.1989 passed by the learned 1st
Additional District & Sessions Judge, Gopalganj
in Sessions Trial No.505/1984/42/1986 relating to
Kuchaikote P.S. Case No.81 (8) 81- G.R.
No.784/81
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Raj Narayan Thakur, son of Goldar Thakur, resident of village-
Karanpura, P.S.-Kuchaikote, District- Gopalganj.
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
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Appearance:
For the Appellant : Mr. Y.V. Giri, Senior Advocate
: Mr. V.R. Bharti, Advocate
For the State : Ms. Shashil Bala Verma, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE AMARESH KUMAR LAL
S.K.Sharma & The sole appellant Raj Narayan Thakur is
A.K.Lal, JJ.
aggrieved by the judgment of conviction and order of
sentence dated 06.09.1989 passed by the learned 1st
Additional Sessions Judge, Gopalganj in Sessions Trial
No.505 of 1984/ 42 of 1986 relating to Kuchaikote P.S.
Case No.81 (8) 81- G.R. No.784/81 whereby the appellant
was held guilty under Section 302/34 of the I.P.C. and was
sentenced to undergo rigorous imprisonment for life.
Patna High Court CR. APP (DB) No.430 of 1989 dt.03-01-2012 2
Another accused Harkesh Thakur, who was put on trial
alongwith this appellant was acquitted because no overt act
was alleged against him.
2. The fardbeyan (Exhibit-1) of Kusum Devi
(P.W.7) was recorded by S.I., Jay Prakash Shrivastava
(P.W.9) in village Kararnpura at about 1.30 A.M. on
17.08.1981wherein she has stated that on 16.08.1981 at about 8.30 P.M., she had gone to her Bathan, which was situated at 25 yards east of her house. While she was returning after feeding her father-in-law, she saw a dog coming out of her house carrying away bread. She made a complaint to her husband Dharam Raj Pandey that the dog belonged to Janardan Thakur. Her husband went and asked Janardan Thakur to keep his dog in chain. An altercation took place on this complaint in which the informant's husband was at one side and accused Harkesh Thakur (since acquitted), Raj Narain Thakur (appellant) and Janardan Thakur (died during investigation) on the other side and they started scuffling with the informant's husband. Suddenly, Janardan Thakur took out a dagger from his waist and pierced it in the back of the informant's husband and as a result of which the informant's husband fell down and Patna High Court CR. APP (DB) No.430 of 1989 dt.03-01-2012 3 subsequently, he died. The occurrence was witnessed by Babu Nand Dubey (P.W.1), Ganesh Pandey (P.W.5), Gauri Shankar Pandey (P.W.8), Jaleshwar Pandey (P.W.4), Sabhajeet Pandey (P.W.3) and others. The fardbeyan of the informant resulted into registration of Kuchaikot P.S. Case No.81 (8)/1981 which was investigated into and after investigation charge-sheet was submitted. This appellant and Harkesh Thakur were charged under Sections 302/34 of the I.P.C. for intentionally causing death of Dharamraj Pandey on 16th August, 1981 at village Karanpura, P.S.-Kuchaikot, District- Gopalganj. Both the accused persons pleaded their innocence and so the trial proceeded.
3. The defence of the appellant was of false implication on account of enmity which was going on since long.
4. The trial court after analyzing the evidence and after examining the documents came to the opinion that the prosecution has been able to prove the charge against the appellant Ram Narayan Thakur beyond shadow of all reasonable doubts, whereas the charge was not proved against Harkesh Thakur.
5. In order to prove the case, the prosecution has Patna High Court CR. APP (DB) No.430 of 1989 dt.03-01-2012 4 examined Babu Nanda Dubey (P.W.1), Rajendra Mishra (P.W.2), Sabhajeet Pandey (P.W.3), Jaleshwar Pandey (P.W.4), Ganesh Pandey (P.W.5), Parma Thakur (P.W.6), Kusum Devi (P.W.7), Gauri Shankar Pandey (P.W.8), Jay Prakash Shrivastava, I.O. (P.W.9) and Dr. Mundrika Prasad (P.W. 10), who has performed the post-mortem of the deceased. The defence has examined one formal witness Md. Imam as D.W.1.
6. P.W.1, P.W.3, P.W.4, P.W.5 and P.W.8 are the witnesses who have been named by the informant as witness to the occurrence. P.W.6 has been tendered, but P.Ws. 1, 3, 4, 5 and 8 have not supported the allegation against the appellant and these persons have been declared hostile.
7. P.W.2 is the formal witness and is not a witness to the occurrence. Therefore, the sole witness supporting the prosecution case is the informant. P.W.7 (informant) in her evidence has stated that the occurrence had taken place at about 8.00 P.M., when she returned to her house after giving meal to her father-in-law, she saw that a dog had entered into her house and was touching the food and she told her husband that the dog was of Harkesh Patna High Court CR. APP (DB) No.430 of 1989 dt.03-01-2012 5 Thakur and her husband told Harkesh Thakur, Janardan Thakur and Raj Narain Thakur to keep the dog in a chain, on which Harkesh Thakur started quarrelling with her husband. Raj Narain Thakur caught hold the waist of her husband and Janardan Thakur assaulted him with dagger, as a result of which he fell down. Her husband was carried to the hospital for treatment where he succumbed to the injuries. According to P.W.7, immediately after the occurrence, the Officer-in- charge came. Her statement was taken on the following day of the occurrence and two days thereafter, her restatement was taken and her signature was again taken. She has witnessed the occurrence.
8. The Investigating Officer has reached at the place of occurrence after hearing rumour regarding killing of a person and took the fardbeyan (Ext.1), which resulted into registration of formal FIR (Ext.2). Inquest report of the dead body (Ext.4) was prepared. The dead body was sent for post-mortem and post mortem report (Ext.5) was prepared. From Exhibit-5, which is the post-mortem report, it is apparent that Dharamraj Pandey had died due to the injury inflicted on him by sharp penetrating weapon, which was sufficient enough to cause death in ordinary course of Patna High Court CR. APP (DB) No.430 of 1989 dt.03-01-2012 6 nature. The death of Dharamraj Pandey due to the injury received by him is not under challenge. The only challenge is with regard to the implication of the appellant by the prosecution in the alleged occurrence. It has been submitted that even according to the first version of the occurrence, which is fardbeyan, no overt act was alleged against this appellant and Harkesh Thakur. The informant (P.W.7) developing her version subsequently for the first time during trial wherein she has attributed that at the time of occurrence her husband was caught by this appellant. It has been submitted that the case identically lodged to this appellant and Harkesh Thakur, is only with a view to make the case distinguishable from the fardbeyan.
9. The case in hand is based on testimony of sole witness, who is the informant. The informant's initial version disclosed that the occurrence was witnessed by P.W.s 1, 3, 4, 5 and 8. These persons were named as witnesses in the fardbeyan, but when these persons were examined before the trial court, then they have not supported any part of the allegation. Therefore, the informant has been contradicted by nonetheless but the witnesses named by her. Not even one witness has Patna High Court CR. APP (DB) No.430 of 1989 dt.03-01-2012 7 supported any part of the allegation against the appellant. Even the informant's initial version in the FIR that when the informant returned, she saw the dog coming out from the house has been given a complete go-bye by her when she stated that she saw the dog eating. Therefore, the informant herself has contradicted upon these parts.
10. The order of conviction can be passed on the testimony of the sole witness, but such testimony must remain consistent throughout. Corroboration of a witness is not general rule and conviction can be based on sole testimony of the witness. Even an uncorroborated testimony of one witness remains in tact, then it is enough to be believed. But when the sole witness contradicts himself/herself then such testimony cannot be accepted to be correct. Rule of corroboration is a rule of prudence. When there is mentioning about presence of many witnesses at the time of occurrence and none of such witnesses are supporting the prosecution case, then it is apparent that the sole testimony has been contradicted and it has not been corroborated at all. On the basis of such non-corroboration and such evidence, it is not prudent to hold that the prosecution case stands proved. Almost on the same Patna High Court CR. APP (DB) No.430 of 1989 dt.03-01-2012 8 evidence Harkesh Thakur has been acquitted because the fardbeyan give similar role to Harkesh Thakur and Raj Narain Thakur.
11. The conviction of the sole appellant is on the basis of development made by the sole witness for the first time when she was examined before the court. Her evidence is doubtful because in para 5 of the deposition, she has stated that immediately after the occurrence the Officer- in-charge came there. The evidence is that the occurrence took place at about 8.00 P.M., whereas the fardbeyan was recorded at 1.30 A.M. on the following day. It cannot be said that the fardbeyan was recorded immediately after the occurrence had taken place. In the fardbeyan, the informant has given another place of occurrence when she has stated that her husband went to the house of the accused persons and there he complained and whatever assault was done there and the distance between two houses has been described to be 25 yards. The occurrence is of the night, but P.W.7 in Para 6 has stated that she has witnessed the occurrence from her house. Neither the source of identification nor the means of light has been explained by the prosecution.
Patna High Court CR. APP (DB) No.430 of 1989 dt.03-01-2012 9
12. To sum up, it is apparent that the independent witnesses, who have been named by the informant, have not supported the allegation against the sole appellant. The sole assailant, who has been described in the fardbeyan, is already dead. The informant has contradicted herself on vital points like manner of occurrence, place of occurrence, time of occurrence etc. and non-production of report of chemical examination either of the seized dagger or soil creates doubt in the prosecution version and in such circumstance, it would be highly improbable to rely upon the testimony of the sole witness.
13. In such background of facts narrated above, it is apparent that the prosecution has not been able to prove the charge against the appellant at all.
14. In the result, the judgment of the conviction and sentence is set aside. The appeal is allowed. The appellant is discharged from the liability of his bail bonds.
(Shyam Kishore Sharma, J.) Patna High Court, Patna (Amaresh Kumar Lal, J.) Dated the 3rd of January, 2012 N.A.F.R./V.K. Pandey