CRIMINAL APPEAL No.83 OF 2003 ------------ Against the judgment and order of conviction passed by Shri Ashok Kumar Pathak, Additional District & Sessions Judge, Fast Track Court No. IV, Siwan on 9.21.2003 and 10.1.2003 in Session Trial No. 446 of 1998/475 of 2002. -------------- GULAB CHANDRA NONIA @ GULAB CHAND NONIA …..Appellant Versus STATE OF BIHAR-------------------------------------Respondent ----------- FOR THE APPELLANT : SHRI ARUNI SINGH,ADVOCATE . (Amicus curiae) FOR THE STATE : SUSHRI SHASHI BALA VERM,A.P.P --------- P R E S E N T THE HON'BLE SHRI. JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI. JUSTICE BIRENDRA PRASAD VERMA Dharnidhar Jha & B.P. Verma, JJ Solitary appellant Gulab Chandra Nonia alias Gulab Chand Nonia stands convicted for offence under section 302 of the Indian Penal Code by the learned Presiding Officer- cum- Additional Sessions Judge, Fast Track Court No. IV, Siwan by the judgment passed on 9.1.2003 in Sessions Trial No. 446/98/475/2002 and was directed to suffer R.I. for life. The appellant was also directed to pay a fine of Rs. 5000/- only and in default in making payment, was to undergo R.I. for two years. The above finding of guilt and the order of sentence are being challenged by the appellant in the present appeal. The facts of the case are very short. It is alleged by P.W.5 Anju Kumari that her father was sitting at his Darwaja at about 7.P.M. on 5.2.1998 when this appellant was found abusing him. The deceased came out and protested by telling the appellant as to why he was abusing him. The appellant was infuriated and rushed inside his house who reappeared with a - 2 - Fasuli and gave a blow on the neck of the deceased so as to cut it. The deceased Shyam Bali Nonia fell down on the northern flank of the road. P.W.5 stated that she started weeping and cried and put her deceased father into a rickshaw so as to shift him to hospital, but in the process of being shifted and being put on the rickshaw, the deceased breathed his last. No motive or reasons for the commission of the offence was assigned by P.W.5 in her statement. The I.O. of the case has not been examined depriving us of the benefit of appreciating as to how the investigation was carried out . But, it is clear that the dead body was sent for postmortem examination and some witnesses were also examined and after closing the investigation the solitary appellant was sent up for trial. The defence of the appellant was of complete denial for the commission of the offence. It was suggested to various witnesses that the deceased was a convict of a charge of murder and had been sentenced to death by the trial court which sentence was commuted by this Court in appeal and that the deceased Shyam Bali Nonia had been released only a few days before the occurrence. It was further suggested that the deceased might have been murdered by some of his staunch enemies and because, the act was perpetrated in the cover of darkness, no one could see the real culprit and implicated an innocent person like the appellant. In support of the charges, the prosecution examined as many as six witnesses out of whom P.W.1 Ram Sagar Nonia was declared hostile. P.W.6 Dr. Sanjay Kumar held the postmortem examination and prepared the - 3 - report Ext.1. The fardbeyan or the first information report or any document which could have been prepared during the course of investigation, including the inquest report were not brought on record. On consideration of the evidence the learned trial judge passed the impugned judgment. The learned counsel who holds power on behalf of the appellant in the present appeal appeared before us yesterday to inform that the agent of the appellant had taken the file back and as such he did not have any instruction, as a result of which, we requested Shri Aruni Singh, Advocate to assist us and accordingly Shri Singh has assisted us by taking us through the evidence and making the submissions on that basis. We have also heard Sushri Shashi Bala Verma on behalf of the State. Shri Singh has submitted that what was the reason for hurling abuses upon the deceased in the fardbeyan has not been dated either in the first information report or in the evidence either of P.W.5 or any of the witnesses. There was no motive assigned as to for what reason the deceased would be killed. It was contended that alleging motive may not be significant in a case of direct evidence, but when the appellant could be as close a relative as being the son of the full sister of the wife of the deceased, some convincing reasons were required to be assigned for the commission of the offence by the appellant. P.W.5, the informant was the only eye witness and her evidence was quite indefinite in fixing the place of occurrence and her claim of seeing the assailant of the deceased appears not an acceptable proposition. It was contended that evidence varies as regards the place of occurrence and in the light of the above infirmities the possibility may not be ruled out that it could be the handy work of any of the enemies of the - 4 - deceased to settle score since he was released either on parole or on bail from custody. It was contended, as such, that the appellant deserves to be acquitted. Sushree Shashi Bala Verma, the learned A.P.P. appearing for the State has resisted the contentions tooth and nail. It was contended by her that the eye witness account of P.W.5 cannot be brushed aside only on the ground that she was making a false statement or showing her ignorance to truth. It was submitted that the deceased was a convict who had been condemned to death by a court of law and that sentence having been commuted the deceased had come out of imprisonment. It was contended that the above fact may not be known to P.W.5 as she was too little a child to be aware of those happenings. It was contended that light could be sufficient facilitating identification of the appellant and the eye witness account clearly establishes the participation of the appellant in the commission of the offence. The occurrence took place as per the witness from 7 to 7.30 P.M. on 5.2.1998. It may be pertinent to point out that the time of the occurrence could be designated as the late evening time of the day. From the months of May up to September, 7 P.M. could be a time when facility of light could be available. At a time of 7 to 7.30 P.M. in the month of February one could find very scant light and in a rural area like the place of occurrence village, most of the villagers might be found having retired to their beds after having taken their meals. It is true that during the cross examination of P.W.5 she was put a question on the facility and viability of the light for identification as may appear from paragraph 14 of P.W.5 when she stated that it was a moon lit night but we are aware of the reality that this - 5 - fact had not been stated in the fardbeyan. In fact there was a complete silence maintained by P.W. 5 while giving her fardbeyan as to what was the source of light which had facilitated the identification of the appellant. One may say that the appellant was abusing and further that the appellant being a very close relative of the deceased and P.W.5, could well be identified. But, when evidenced has come on the facility of light naturally or artificially at the scene of occurrence we do not have the liberty to transgress that evidence specially because we feel inclination in ourselves that if there had been no facility of light what was the need for her counsel to question her on the sufficiency of light at the scene of occurrence. P.W.1 has stated in paragraph 3 that the night at the time of the occurrence was dark and further that there was no electric supply in his village. P.W.3 has given evidence making it very uncertain as to whether it could be a dark night or moon lit night. P.W.4 in paragraph 2 has stated that it was dark at the time of occurrence and that there was no electricity in the village. Thus the evidence of the witnesses are giving two pictures that either it could be a dark night on the date of occurrence or it could be a moon lit night. We have already considered the non mention of any fact on the availability of light at the scene of occurrence in the fardbeyan. Preponderance of evidence of three witnesses other than P.W.5 tilts the balance of probability that it was a dark night. Having said the above, what we consider next was that what could be the place of occurrence. There were many houses intervening the house of the deceased and those of the witnesses. There is evidence to show that there were at least 10-15 other houses intervening in between appellant’s - 6 - house and the deceased’s house. No one put a question as to what was the place of occurrence neither any one was telling the court out of his own volition as to what was it. The fardbeyan as such renders some help from which we are raising an inference. The deceased was killed some where on a road and he fell down on the northern flank of it. This probability is supported by P.W.3 Lilabati Devi in her evidence in paragraph 1 when she stated that she saw the dead body of Shaym Bali lying on the road and P.W.5 was there and was telling that it was this appellant who had killed his father. P.W.4 is a labourer who was returning from his daily work. He has stated that while he was taking his bath in his angan, he heard hulla and came out on the road and found that the neck of Shyam Bali had been cut. Thus the probabilities are that the occurrence had taken place on some part of the road .Incidentally, P.W.5 was cross-examined about the situation around her house and we find that there was no road on any side of her house. The houses of persons which were situated on the four sides of house of P.W. 5 or the deceased were the persons who were other than P.W.4 Ram Govind Gorh. The I.O. was not examined. The evidence of I.O. appears, to us highly essential as he could be the only person to throw light as to where the incident had really occurred. We assume that during the occurrence the I.O. must have seized many things from the place of occurrence besides he might have prepared the inquest report but we are deprived of those documents and the benefit of perusing and appreciating the evidence of I.O. This appears to us a big lacuna in the prosecution case. Ext.A is judgment rendered by the 5th Additional District& Sessions Judge, Siwan , in S.Trial No. 118 of 1981 on 21st of May 1985. It - 7 - appears from perusal of Ext.A, the judgment that Shyam Bali Nonia the deceased was one of the accused in that sessions trial and paragraph 26 of the same indicates that he had been directed to be hanged by his neck, by the learned trial judge. Suggestions were denied by the witnesses that he had been convicted and sentence to death. The witnesses have stated that they did not really know that indeed Shyam Bali Nonia, the deceased was a convict, who was sentenced to death and that sentence had been commuted by this Court and thereafter he had been released from custody. We may safely record that it could be rare event when this court has granted bail to a condemned prisoner, else only when his sentence had been commuted. The fact that Shyam Bali Nonia was murdered at his village testified to the situation he might have been released at the direction of this court or on account of getting some sort of remission in his sentence. Questions were put to all witnesses that he was a man of bad antecedent, but the witnesses have either replied to that question in negative or have simply shown their ignorance to his antecedent. We believe that the witnesses were not honest in accepting the truth that Shyam Bali Nonia was at least a convict of a charge under section 302 of the penal Code. Possibility may be that there were many enemies of his society who could be baying for his blood and since they got an opportunity, they settled their score against him. In our considered view, there might have been some incident in between the appellant and the deceased and might be that the little daughter of the deceased was acting on an apriori suspicion to implicate the appellant. After considering the facts and circumstances arising from the record, we find that it was a case in which the learned trial judge ought to - 8 - have extended the benefit of doubt to the appellant and ought to have acquitted him. We acquit him. The appellant Gulab Chandra Nonia @ Gulab Chand Nonia is in custody. He shall be released forthwith if not wanted in any other case. The appeal is allowed and judgment of conviction and order of sentence are set aside. We must appreciate the effort of Sri Aruni Singh, who has assisted us wonderfully at a very short notice and we think that he deserves a fee of hearing to be paid to him by the High Court Legal Services Committee. Let a copy of the first and last pages of this judgment be handed over to him for that purpose. (Dharnidhar Jha, J) (Birendra Prasad Verma,J) Patna High Court, The 12th March2010 M.Rahman/NAFR