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 W i t h 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 J U D G E M E N T 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