Patna High Court
Ram Nath Chaudhary & Ors vs State Of Bihar on 17 August, 2015
Author: Gopal Prasad
Bench: Gopal Prasad
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.495 of 1992
Arising Out of P.S.Case No. -47 Year- 1990 Thana -Sanjhauli District- SASARAM (ROHTAS)
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1. Ram Nath Chaudhary son of Runa Choudhary,
2. Dhanpal Chaudhary,
3. Dharmendra Chaudhary alias Langra &
4. Praduman Chaudhary, all sons of Ram Nath Chaudhary, all resident of village-
Bagaiya, P.S. Sanjhauli, District-Rohtas, Bihar
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Appellant : None.
For the Respondent : Sushri Shashi Bala Verma, APP.
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CORAM: HONOURABLE MR. JUSTICE DHARNIDHAR JHA
and
HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE DHARNIDHAR JHA)
Date: 17-08-2015
The four appellants were put on trial by the learned 6th
Additional Sessions Judge, Rohtas at Sasaram by being charged with
committing offence under Section 302/34 of the Indian Penal Code in
Sessions Trial No.149 of 1991. They were held guilty of committing
the offence by judgment dated 30.11.1992 and after being heard on
sentence on the same day, each of them was directed to suffer
rigorous imprisonment for life. The appellant Praduman Chaudhary
had distinctly been charged under Section 302 of the Indian Penal
Code and he was convicted of committing that offence and he was
also directed to suffer rigorous imprisonment for life. The four
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 2
appellants have preferred the present appeal to challenge the
correctness of the judgment of conviction and order of sentence
passed upon them.
2. P.W.4 Bhikhaynia Devi, the mother of the deceased
gave her fardbeyan to P.W.7 S.I. Ambika Singh, who was the Officer-
in-Charge of Sanjhauli police station on 19.09.1990 stating that her
son deceased Raj Kumar Chaudhary had gone out of his house on to
the Darwaza of the accused persons for indulging into gambling with
the convicts. It was stated that he had come back at about 9 A.M. and
had slept inside his house. Before he had come back to his house,
there had been some dispute between the deceased Raj Kumar
Chaudhary and the appellants on payment of Rs.5/- which was
demanded by the accused persons. Not getting the payment from the
deceased Raj Kumar Chaudhary, it was stated that the deceased had
been threatened by the accused persons of reaping the consequences
in the next morning.
3. The informant stated that her son had woke up from
his bed at about 8 A.M. and as soon as he had gone out of his house
on to the Darwaza, the appellants had put him down on the groun d
and appellants Praduman Chaudhary, Dhanpal Chaudhary and
accused Mukuya Chaudhary had pressed his neck and killed him. On
the cries of the deceased Raj Kumar Chaudhary, the informant
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 3
claimed having come out of her house to see the incident and stated
that after killing her son, the accused persons had run out of the place
towards their respective houses.
4. P.W.7 S.I. Ambika Singh would state in his evidence
that he had picked up a rumour while he was present at his police
station about the incidence and, as such, he after making an entry into
the Station Diary left for village-Bagaiya in order to verifying the
truthfulness of the information. He came to the house of P.W.4
Bhikhaynia Devi, the mother of the deceased, and recorded her
statement which was marked Ext-2. He stated that he recorded the
statements of witnesses and held inquest upon the dead body of
deceased Raj Kumar Chaudhary by preparing the inquest report by
carbon process, the copy of the inquest report has been marked Ext-4.
The investigating officer inspected the place of occurrence which was
the vacant land situated north of the Darwaza of the deceased Raj
Kumar Chaudhary and south of south facing Darwaza of appellant
Ram Nath Chaudhary which was a strip of land about 10-12 ft. in
width and there was a Nala running south of the Darwaza of the
accused from east to west. There were three Chowkies placed in the
Darwaja of the accused persons which had a room facing west and a
Chowki was also placed inside that room. Another Chowki was placed
east of the Darwaza and it was the place as per P.W.7 S.I. Ambika
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 4
Singh where the deceased Raj Kumar Chaudhary had been
strangulated to death.
P.W.7 S.I. Ambika Singh prepared the dead body Challan
and sent the dead body for postmortem examination to Sadar Hospital,
Sasaram and then he recorded the further statement of the informant
along with the statements of other witnesses. He obtained the
postmortem examination report and handed over the charge of
investigation to S.I. Surendra Prasad Singh who had submitted the
chargesheet in the case.
5. The defence of the appellants was that during
gambling the deceased Raj Kumar Chaudhary had incurred severe
monetary loss and on account of being frustrated, he committed
suicide.
6. Seven witnesses were examined by the prosecution,
out of whom, P.W.1 Rajadhari Choudhary was a witness who had
stated that while coming to the house of the informant Bhikhaynia
Devi to meet her, he found the accused persons running away towards
east and when he reached the house of P.W.4 Bhikhaynia Devi, his
sister, P.W.4 stated that her son had been strangulated to death by the
accused persons. He looked at his nephew and found him dead. He
was stating that P.W.7 had arrived after an our or so of the incident
who recorded the statement of his sister and he signed the statement
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 5
as a witness.
7. Thus, what appears from the evidence of P.W.1
Rajadhari Chaudhary is that he was not an eye witness to the real part
of the occurrence and he had merely seen the accused persons running
away towards east. We want to point out that the basic prosecution
case was not that the accused persons had run away to any particular
direction, rather the informant had stated that they had run from the
place of occurrence after committing murder of the deceased Raj
Kumar Chaudhary into their respective houses. There are other defects
in the evidence of P.W.1 which we will point out a little later. P.W.2
Doma Choudhary was also not an eye witness to the occurrence and
he stated that on being attracted to the place of occurrence by Hulla
which was emanating from there, he went there to find none present
there. P.W.4 Bhikhaynia Devi, the informant of the case, stated to him
that it was the accused persons who had killed her son on account of
reasons of gambling while the father of the deceased Gopi Chaudhary
(P.W.5) did not state any thing. He was stating in cross-examination
that he could not say as to how the deceased Raj Kumar Chaudhary
had died or who had killed him. It was further stated by P.W.2 that he
had never given any statement to the police and thus the evidence of
P.W.2 appears inadmissible for the reason of being never questioned
by the police. P.W.3 Parash Nath Chaudhary was tendered in cross-
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 6
examination. P.W.4 Bhikhaynia Devi was the mother of the deceased
Raj Kumar Chaudhary and the informant of the case while P.W.5
Gopi Choudhary was the father of the deceased and the husband of
the informant P.W.4. It is very well recorded by the learned trial
Judge in paragraph-4 of the cross-examination of P.W.5 that when the
witness was shown ten fingers of his hands by the counsel during
cross-examination of P.W.5 from a distance of about 5 ft. and was
asked to point out the number of fingers, the witness showed his
inability by saying that he could not see things from that distance. It
further appears from the evidence of P.W.5 in paragraph-2 that he had
also claimed being an eye witness to the occurrence. P.W.6 Dr.
Devendra Tripathi was the doctor who had held postmortem
examination on the dead body of deceased Raj Kumar Chaudhary and
had prepared the postmortem examination report (Ext-1). P.W.7
Ambika Singh was the investigation officer of the case.
8. The learned trial Judge held that P.Ws.4 and 5 were
competent witnesses and that their evidence had brought the charge
home to the accused persons.
9. No one had appeared, on the appeal being called out
for hearing and we have heard Sushri Shashi Bala Verma, learned
Additional Public Prosecutor on behalf of the State and had ourselves
gone through the evidence of the witnesses. We have already noted
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 7
that P.W.1 and P.W.2 were not eye witnesses to the occurrence and
the evidence of P.W.2 could not be of any use as he has himself
admitted having not been questioned ever by the police. So far as
P.W.1 Rajadhari Chaudhary is concerned, after we had considered his
claim of coming to the house of his sister P.W.4 Bhikhaynia Devi,
when he was told by her about the manner of killing of her son Raj
Kumar Chaudhary, we scrutinized the evidence of P.W.4, the
informant of the case so as to finding out as to whether there could be
any support to that particular claim of P.W.1 either directly from the
evidence of P.W.4 or from the circumstances appearing from her
evidence. During her cross-examination, P.W.4 stated that after she
had come out of her house, after hearing the sounds of her son on
account of being killed, she saw that her son had been strangulated to
death by appellant Praduman Chaudhary whereafter she started crying
after falling on the dead body and her husband was also weeping and
wailing with her. This evidence has come in paragraph -12 of P.W.4.
We did not have any reason to doubt the above statement of P.W.4
that she had wept and wailed on the dead body of her son after she
had seen and found her son killed. This is the most natural conduct of
a mother that she could be weeping inconsolably after falling on the
dead body of her son who had been murdered in her presence as soon
as she had appeared out of her house. It would have been such a scene
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 8
that the mother of the deceased could not have been in a position to
make any statement to P.W.1 as to how her son had been strangulated
to death by the accused persons. Besides, we do not see any particular
reason assigned by P.W.1 as to why he should come so early on the
day to the house of his sister. What was the urgency which had
compelled P.W.1 to move out of his house so early in the morning to
arrive at the scene of occurrence so as to becoming a witness to some
part of the witness or being a witness who had learnt from P.W.4
about the details of her son. It is true that P.w.1 had signed the
fardbeyan but the fardbeyan was recorded after three hours of the
occurrence and those three hours could be big space of time during
which the witness could have come after learning about the murder of
his nephew and, as such, mere signing of document Ext-2, the
fardbeyan does not lend credibility to his claim of seeing some part of
the occurrence while the accused persons were running away from
there or getting news from P.W.2. Even after P.W.4 had stated some
facts as regards the manner of occurrence, we do not attach much
value to that part of the statement of P.W.1 inasmuch as we could be
accepting him as a mere chance witness whose evidence is always
dangerous to use in upholding the judgment of conviction.
We have already noted while referring to the evidence of
P.W.2 Doma Chaudhary that he had neither seen the occurrence nor
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 9
he had seen any accused running away from the place of occurrence
and he had stated that P.W.4 had narrated to him the manner of
occurrence. But in cross-examination, the witness stated that he was
never questioned by the police. On account of having not given any
statement to the police, we take it on the safer side of appreciation of
the evidence by eliminating from our considering the evidence of
P.W.2.
10. So far as the evidence of P.W.4 is concerned, that
evidence appears coming from an honest person who had made a true
and proper disclosure of the facts which were material in unfurling of
the prosecution narration. P.W.4 stated that while she was picking up
utensils so as to assemble them at the place meant for washing them,
she could pick up the giggling and gagging voice of the deceased Raj
Kumar Chaudhary, she rushed out of her house leaving aside the
utensils and as soon as she appeared at the entry of the house, she
found that the appellants had put her son down and they had
immobilized him and appellant Praduman Chaudhary was pressing
his neck who ultimately succeeded in strangulating him to death.
P.W.4 Bhikhaynia Devi stated that during the night previous to the
incident, her son had gone out of her house to gamble with the
accused persons on their Darwaza and he had come back at about 3
A.M. when he had slept inside his house. Her transparency in being
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 10
forthright could be appreciated from the fact that she stated that her
son had turned into a habitual gambler and she used to reason with
him to desist from continuing in the bad act but she had not so far
succeeded in it. During that connection she had stated that she was not
the master of the house rather it was her husband who used to keep
accounts of cash and other things. P.W.4 further stated that the
Daroga, i.e., P.W.7 Ambika Singh had appeared at the scene of
occurrence from anywhere and she did not know as to how he had
come to know about the occurrence having taken place and it was
P.W.7 himself who had disclosed his identities to P.W.4 Bhikhaynia
Devi and who recorded her fardbeyan (Ext-1). P.W.4 also stated that
her husband was very well present at the Darwaza and as soon as she
saw her son killed, she and her husband started weeping and wailing
at the dead body when the Daroga had arrived there.
11. From perusal of the evidence of P.W.4 Bhikhaynia
Devi, we do not find any fact appearing in her deposition which could
render her an untruthfulness witness. There was no personal reasons
for P.W.4 to impute allegations against the appellants falsely. She was
a close neighbour having her houses opposite the houses of the
appellants. The houses of P.W.4 and those of the accused persons
were separated only by a vacant land of 12 ft. width. There does not
appear any particular reason for which the informant could be telling
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 11
lies. Her honesty and fairness appears to such an extent that she was
forthright in pointing out that her husband could not see during night
and he had also difficulties in seeing properly during day time.
12. P.W.5 Gopi Chaudhary, the husband of the
informant had also claimed himself being an eye witness to the
occurrence and had stated that he had seen his son being put on the
ground by the appellants and thereafter, being strangulated to death in
a concerted manner as clearly stated by his wife P.W.4. While
referring to his evidence, we had noted in the earlier part of the
present judgment that the counsel who was cross-examining him in
the trial Court was showing ten fingers to him and asking him to point
out the number of the fingers when he had failed to properly tell the
numbers. But when he was asked to identify the accused persons, he
was properly identifying them. The murder had been committed at 8
A.M. on 19.09.1990 when the sun could have been almost on full
bloom and the space must have been lighted sufficiently due to sun
light so as to facilitating the vision of a man even if his vision was a
bit tardy as appears from the evidence of P.W.4 and 5 themselves. It
could never have been difficult for P.W.5 Gopi Chaudhary to pick up
the identities of such close fellows, like, the appellants who were
living with him and who could have been acquainted with him, like,
the palm of his hands. Even if the vision of P.W.5 was impaired as
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 12
appears from the evidence of himself as also from his wife during the
night time. The identification of the accused clearly tells us that he
could have seen and identified the accused persons.
13. Moreover while considering the evidence of P.W.4,
what we could find out was that her evidence was blemishless. She
was forthrightly an honest lady. She was fair as well and she was
conceding that her husband was afflicted by some vision impairment
and he was not able to see during night. She did not have any
particular reason to implicate the accused persons as the relationship
between the families were quite cordial. Moreover, the incident was
not a result of any acrimony or ill-will which could have existed
between the families rather it was the result of the personal grudge of
the appellants towards the deceased Raj Kumar Chaudhary which they
had carried in their hearts on account of not getting the payment of
Rs.5/- from the deceased who had undisputed gambled with them
during the night of 19.09.1990. The evidence of P.W.4 appears
bearing a very strong hinge of truth and we, after perusing her
evidence, placed our faith in her who appeared to us telling the truth.
14. The manner of occurrence was that the deceased
Raj Kumar Chaudhary was put on the ground and he was strangulated
to death by using hands. While considering the evidence of P.W.6 Dr.
Devendra Tripathi who had performed autopsy on the dead body of
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 13
deceased Raj Kumar Chaudhary, we found the doctor telling the trial
Court that he had found an ante-mortem swelling measuring 4"x 3" on
the front of neck with multiple linear abrasions measuring from 1" to
¼", placed irregularly on the neck. On dissection of the neck, P.W.6
had found blood under the skin. Thyroid bone was found fractured
contained blood. What appears from the consideration of the evidence
of P.W.6 is that the deceased had been caught on his neck and the
pressing of the neck by fingers had caused the multiple abrasion
measuring from 1" to ¼" and those abrasions were linear which
further indicated that the deceased had put up resistance at the time of
his strangulation. P.W.4, the mother of the deceased, was put a
question as to whether her son had eaten anything after he had woke
up and what appears from her evidence in paragraph-9 is that she
stated that he had not even washed his mouth after he got out of his
bed and as soon as he had gone out of his house, he had been caught
by the accused persons to be killed. That fact stated by P.W.4 during
her deposition appears corroborated by the evidence of P.W.6, the
doctor who did not find either undigested or semi-digested food in the
stomach of the deceased and, as such, what appears that stomach of
the deceased was empty after he had awoken from his bed.
15. The defence that the deceased had committed
suicide out of frustration due to losing while gambling appears not
Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 14
probable as the medical evidence does not suggest that the fatal injury
could have been caused to commission of suicide, which more
prominently appears fit to be rejected as the length and width of the
mark of neck was overruling the theory.
16. After having considered the evidence of witnesses,
what we find is that the learned trial Judge had appropriately reached
the finding that the deceased Raj Kumar Chaudhary had been
strangulated to death by the accused persons and, as such, had
justifiably convicted the appellants.
17. However, what we find from the very judgment
itself is that the appellant Dharmendra Chaudhary alias Langra was
aged about 19 years on 06.11.1992 and the appellant Praduman
Chaudhary was aged about 20 years on that day. These facts have
been recorded by the learned trial Judge himself not only in his
judgment but also while recording the statements of the above named
two appellants under Section 313 Cr.P.C. The occurrence is dated
19.09.1990and, as such, appellant Dharmendra Chaudhary alias Langra could be below 18 years and appellant Praduman Chaudhary could be below 20 years of age. In fact, the recording of statement recorded under Section 313 Cr.P.C. in respect of appellant Dharmendra Chaudhary alias Langra indicates as if that appellant had pointed out his age as 15 years while appellant Praduman Chaudhary Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 15 had claimed himself to be 17 years on 06.11.1992, when his statement under Section 313 Cr.P.C. was recorded by the learned trial Judge. While appellant Dharmendra Chaudhary alias Langra could be below 18 years of age on the basis of record made by the learned trial Judge, the appellant Praduman Chaudhary could be somewhere at the margin of being 18 years. As such, after having upheld their conviction, we direct the Juvenile Justice Board, Rohtas at Sasaram, to hold an enquiry as regards their age. We direct that the informant of the case if she is alive and available, must be given a notice to contest the enquiry under Section 49 of the Juvenile Justice (Care & Protection) Act, 2000 and she also be allowed to adduce evidence in enquiry. As regards other appellants, namely, Ram Nath Chaudhary and Dhanpal Chaudhary, we after having upheld their conviction also uphold the sentence which was passed upon them.
18. With the above direction in the light of Section 7A of the Juvenile Justice (Care & Protection) Act, 2000, we dismiss the appeal in its entirety. The learned Juvenile Justice Board, Rohtas at Sasaram shall, after holding an enquiry on the age of the two appellants, would proceed as per Sections 15 and 16 of the Juvenile Justice (Care & Protection) Act, 2000. The appeal stands dismissed.
19. The appellants are on bail. Their bail bonds are hereby cancelled. Those appellants whose enquiry is to be taken up by Patna High Court CR. APP (DB) No.495 of 1992 dt.17-08-2015 16 the Board shall be produced before the above Board and it shall be within the fitness of the jurisdiction of the Board to proceed to admit them to bail in the light of Section 12 of the said Act.
(Dharnidhar Jha, J) (Gopal Prasad, J) Brajesh Kr./mrl.
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