IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) NO.453 OF 2007 ======================================================= Against the judgment of conviction and order of sentence dated 8th March, 2007 passed by Sri Vipin Bihari Srivastava, Additional Sessions Judge, F.T.C. No. IV, Purnea in Sessions Trial No. 669 of 2002/tr. No. 21 of 2003. ======================================================= 1. UMANAND MEHTA SON OF LATE BOWKU MEHTA, R/O VILLAGE- THARAHA, P.S.- K. HAT (MARANGA), DISTRICT- PURNEA 2. KRITYANAND MEHTA, SONOF LATE CHANDI MEHTA R/O VILLAGE-SATKODARIYA (KOLA), P.S.- K. HAT, DISTRICT- PURNEA 3. RABINDRA MEHTA, SON OF KRITYANAND MEHTA, R/O VILLAGE- SATKODARIYA (KOLA), P.S.- K. HAT, DISTRICT- PURNEA ………………………………...... .... APPELLANT/S VERSUS STATE OF BIHAR …………………………….... .... RESPONDENT/S ======================================================= Appearance : For the Appellant/s : Mr. Dhirendra Nath Jha, Advocate Mr. Chandra Shekhar Sharma, Advocate Mr. Abhay Kumar, Advocate For the Respondent/s : Mr. Ashwini Kumar Sinha, APP ======================================================= CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH) Through this appeal the appellants have challenged the judgment of conviction and order of sentence dated 8.3.2007 passed by the learned Additional Sessions Judge, F.T.C. No. IV, Purnea in Sessions Trial No. 669 of 2002 / Tr. No. 21 of 2003 whereby and whereunder the appellants have been convicted under sections 302/34 of the Indian Penal Code and were sentenced to undergo imprisonment for life. The period under custody of the Patna High Court CR. APP (DB) No.453 of 2007 dt.11-11-2011 2 convict Uma Nand Mehta was directed to be set of under section 428 of the Cr.P.C. 2. The prosecution case emanates from the fard beyan of Manju Devi wife of deceased Ghanshyam Mehta, recorded by S.I., R. S. Singh (not examined) of Maranga O.P. on 9.10.2001 at 10.45 AM at Sadar Hospital, Purnea to the effect that the informant was sleeping with her husband (deceased) in the house but due to excessive hot weather the husband went to sleep towards the door at 12.30 AM in night, whereupon the informant again fell asleep. At about 2.00 AM, in the night, the informant heard gagging voice of her husband, upon which she came at the door and saw Uma Nand Mehta- her husband’s younger brother slitting the neck of her husband with axe whereas appellant no. 2 Krityanand Mehta, the father-in-law of appellant no. 1, and appellant no. 3 Rabindra Mehta, the brother-in-law of appellant no. 1, were holding the deceased. It is also alleged that when the informant tried to raise alarm then Rabindra Mehta shut the mouth of the informant by his hand. Subsequently, on the alarm of the informant the wives of Jawani Mehta, Chamak Lal Mehta, Khokha Mehta and others came, but under the impression that the husband of the informant has died, they fled away. Subsequently, several villagers came and found several cut injuries on the body of victim and then with the help of villagers, the victim was brought to Purnea Hospital, where he was declared dead. The reason for the occurrence has been alleged to be the land dispute. The attesting witnesses to the fard- Patna High Court CR. APP (DB) No.453 of 2007 dt.11-11-2011 3 beyan are Umesh Kumar Mehta and Nawal Kishore Mehta (not examined). On the basis of aforesaid fard-beyan, K. Hat P.S. Case No. 281 of 2001 was registered under Sections 302, 120B/34 of the Indian Penal Code on 9.8.2001 at 9.30. P.M. against the appellants named above. 3. On submission of chargesheet and cognizance being taken, the case was committed to the Court of Sessions where the charges were framed under sections 302/34 of the Indian Penal Code against all the three appellants and explained to them, to which they pleaded their innocence and claimed to be tried. 4. In order to substantiate the accusation, the prosecution has examined 9 witnesses. Out of which two independent witnesses, Shankar Kumar Mehta and Anath Kumar Mehta, namely, PWs 1 and 2 have not supported the prosecution case and have been declared hostile. Whereas, PWs 3 and 5 are the minor daughters of the deceased and PW 4 is the minor son of the deceased. PW 6 is the mother of the deceased and PW 7, the informant Manju Devi is the wife of the deceased. PW 8 Dr. Arvind Kumar conducted the post mortem and found only superficial injury on the right elbow and on the lower wrist. PW 9 Ganesh Kumar is the formal witness who has proved the FIR. The Investigating officer has not been examined. 5. The defence has also examined two witnesses, namely, Lal Bahadur Singh and Jagat Lal Singh, who have suggested that the appellants have falsely been implicated in the Patna High Court CR. APP (DB) No.453 of 2007 dt.11-11-2011 4 present case. 6. PW 3, Krishna Kumari, who was ten years of age at the time of occurrence, has deposed in paragraph 2 of her evidence that Rabindra Mehta had pressed the mouth of her mother, i.e. the informant, whereas Krityanand Mehta had caught hold of her father’s hand by pulling it on the back side and assault was made by Uma Nand Mehta on the neck and chest. In paragraph 30 of her evidence, she has stated that three axe blows were given to her father in her presence, though he was also assaulted prior to her coming at the place of occurrence. In paragraph 22 of her evidence, this witness has suggested that she came outside near the place of occurrence 2-3 hours later than her father. There are inconsistencies in the evidence of this witness and considering her age at the time of occurrence to be of ten years coupled with the fact that the informant PW 7 has not claimed presence of PW 3 at the place of occurrence in the fard beyan, much reliance cannot be placed on her evidence. 7. PW 4 is the 12 year old son, of the deceased. In paragraph 10 of his evidence, he stated that he could not see the accused assaulting his father. Though in paragraph 25 of his evidence, he claims to have seen the assault. Hence, considering these inconsistencies and particularly the age of this witness, his evidence cannot also be relied upon. 8. PW 5 is the another minor daughter of the informant who was about 14-15 years of age at the time of occurrence. In Patna High Court CR. APP (DB) No.453 of 2007 dt.11-11-2011 5 paragraph 7 of her evidence, she has stated that all the three accused assaulted her father with axe, which is inconsistent with the evidences of PWs 2, 3 and 4 as well as to that of the informant. This witness further contradicts her own statement in paragraph 8 of her evidence by saying that Krityanand was holding the hand of his father, whereas Rabindra Mehta was pressing the mouth of her mother, while in paragraph 9, she has deposed that only Uma Nand Mehta assaulted on the forehead, neck and chest of the deceased. In paragraph 44 of her evidence, this witness has stated that they did not receive blood stains, since the assault had already been made before they reached to the place of occurrence. Hence, these inconsistencies create doubt about the presence of PW 5 at the place of occurrence. 9. PW 6 is none else than the 70 year old mother of the deceased, as well as of the appellant no.1 Uma Nand Mehta. In paragraph 4 of her evidence, she has stated that she reached at the door on hearing the gagging voice and saw all the three accused, armed with axe, fleeing away. She has claimed in paragraph 6 of her evidence that only Uma was armed with axe and to that extent this witness is consistent to the evidence of PWs 3, 4, 5 and 7. Though, she has claimed that she could not see actual assault which has further been clarified on court’s question in paragraph 13. In paragraph 42 of her evidence, she claimed to have identified the persons in the light of electric bulb, at the place of occurrence. The evidence of this witness, being the mother of appellant no. 1 Patna High Court CR. APP (DB) No.453 of 2007 dt.11-11-2011 6 Uma Nand Mehta and the deceased cannot be disbelieved. Even by appreciating her admission that she could not see the assault part, her evidence to the extent that the accused persons were fleeing away, including appellant Uma Nand Mehta armed with axe, is not only admissible but is fully corroborated by the evidence of other witnesses. Hence, the mother’s deposition to that extent is a conclusive evidence so far as the charge against Uma Nand Mehta is concerned. The mother who has courage to depose against the only surviving son has no reason to conceal or protect the father- in-law and the brother-in-law of only surviving son. 10. PW 7, the wife of the deceased, is the informant. In paragraph no. 5 of her evidence, she has stated that appellant no. 1 Uma Nand Mehta was armed with Kulhari who was assaulting her husband, whereas Krityanand Mehta was holding the hands of the deceased and Rabindra Mehta was trying to nab the informant. In paragraphs 7 and 21 of her deposition, this witness has clearly stated that Uma Nand Mehta made the assault on the head, neck and chest of her husband, though he was assaulting him from before. In paragraph 47, she has stated that three injuries were inflicted upon the deceased in her presence. Hence, so far as the assault is concerned it appears that PW 7 is the eye witness to the extent that only Uma Nand Mehta was armed with axe and made the assault. So far as accusations of catching hold of the hands of the deceased by Krityanand Mehta and shutting of the mouth of PW 7 by Rabindra Mehta are concerned, this has not Patna High Court CR. APP (DB) No.453 of 2007 dt.11-11-2011 7 been corroborated by the medical evidence, as no sign of resisting injuries, even bruise was found on any part of victim’s body nor any injury has been claimed by PW 7 nor any injury report of PW 7 has been brought on record. In a situation when somebody’s neck is being axed and his hand is being caught by somebody then resisting injuries are corollary to such act of assault. But the resisting injury has neither been found on any part of the body of deceased nor the informant claims any resisting injury upon her mouth. The evidence of PW 7 that Krityanand Mehta was holding the hand of the deceased and Rabindra Mehta was pressing the mouth of the informant has not been suggested by PW 6 in her evidence. 11. The doctor has found altogether 7 injuries of which the injury no. 1 is on the neck, three on forehead and these injuries were claimed to have been seen by PW 7. Hence, it appears that the evidence of PW 8 corroborates the ocular evidence of PW 7. 12. Though the defence has given a suggestion to the prosecution witnesses, particularly PW 7, to the effect that the informant had illicit relation with Umesh Mehta and the occurrence might have been caused at his behest but these suggestions have not been supported by any cogent evidence nor the defence has come out with a specific case that any one had seen Umesh present at the place of occurrence. 13. No doubt, the prosecution has failed to examine any independent witness but nowadays it is very difficult to get any Patna High Court CR. APP (DB) No.453 of 2007 dt.11-11-2011 8 independent witness to support a serious offence because the society has not only become self centered, but everyone has become apprehensive about the various implications of being a witness in a serious case. Non-examination of independent witnesses has also to be considered in the background of the fact that the occurrence took place at 2.00 AM in the night at the house of the informant which makes the probability of the presence of the independent witnesses quite unreasonable. 14. The defence has raised question with regard to the prejudice caused to the appellants due to non-examination of the Investigating Officer. Undoubtedly, non-examination of the Investigating Officer prejudiced the case of the accused because they lost the opportunity to corroborate and contradict the witnesses with regard to their statements given under section 161 Cr.P.C., but the evidence of PWs 6 and 7 to the extent of the assault being made by Uma Nand Mehta only, is conclusively proved and to that extent the learned trial court has appreciated the evidence in the right perspective. Hence, due to non- examination of the Investigating Officer the prejudice is not as such which can create doubt over the evidence of eye witnesses i.e., PWs 6 and 7, so far as charge against Uma Nand Mehta is concerned. 15. It is contended that vital witnesses have not been examined.The fard beyan has been attested by two witnesses, namely, Umesh Kumar Mehta and Nawal Kishore Mehta, but both Patna High Court CR. APP (DB) No.453 of 2007 dt.11-11-2011 9 of them were not examined, whereas the presence of the wives of Jawani Mehta, Chamak Lal Mehta and Khokha Mehta has been claimed by the informant- PW 7, but they also have not been examined. The presence of other villagers have also been claimed by the informant who took the victim to the hospital by a vehicle, but the driver who took the victim to the hospital has also not been examined. The Sub Inspector of Police R. S. Singh, who recorded the fard-beyan of the informant, has also not been examined. But in our view, their non-examination has not substantially prejudiced the case of appellants. 16. The other defence of the appellants is that in the FIR it is alleged that there was some land dispute for which some panchayati was going on. Undoubtedly, the prosecution has not made any endeavour to prove the motive with regard to land dispute as no witnesses have deposed any thing to that effect during the trial. But it is a settled principle of law that where the direct evidence is available, the motive takes the back seat. In our view so far as the charge against Uma Nand Mehta is concerned, to that extent the evidence of PWs 6 and 7 is direct. 17. Hence, in our view the learned trial court has not appreciated the evidence in its true perspective so far as the appellant Nos. 2 and 3, namely, Krityanand Mehta and Rabindra Mehta are concerned. Accordingly, the judgment of conviction and order of sentence against the appellant nos. 2 and 3 are set aside. They are acquitted of the charges and they are directed to be Patna High Court CR. APP (DB) No.453 of 2007 dt.11-11-2011 10 discharged from the liabilities of their bail bonds. Accordingly the appeal is partly allowed with regard to appellant nos. 2 and 3. 18. On the basis of discussions made above, we find that there is no infirmity in the judgment of conviction and order of sentence so far as the appellant no. 1, Uma Nand Mehta, is concerned. Accordingly, his conviction is converted from 302/34 IPC to 302 IPC simplicitor and his conviction and order of sentence is upheld. With the aforementioned modification this appeal is dismissed so far as the appellant no. 1, Uma Nand Mehta, is concerned. Since he is in custody, he will serve his sentence. 19. In the result, this appeal is allowed in part. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.) Patna High Court, Patna Dated 11th November, 2011 Avin/N.A.F.R.