CRIMINAL APPEAL NO.194 Of 1988 WITH CRIMINAL APPEAL NO.195 Of 1088 Against the judgement of conviction and order of sentence dated 8.4.1988 passed by Sessions Judge, Siwan in Sessions Trial No.83 of 1984 CR. APP (DB) No.194 of 1988 1. BHAGWATI CHOUDHARY, 2.BASISHT CHOUDHARY, 3.HEERA LAL CHOUDHARY, 4.SHANKAR CHOUDHARY & 5.HANS NATH CHOUDHARY Versus THE SATE OF BIHAR With CR. APP (DB) No.195 of 1988 RAJMAN CHOUDHARY @ RAJ CHOUDHARY Versus THE STATE OF BIHAR ----------- For the appellants:- Sri Anil Kumar Singh & Sri Surendra Kumar, Advocates. For the State:- Sushri Shashibala Verma,A.P.P. P R E S E N T THE HON’BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE DINESH KUMAR SINGH Dharnidhar Jha & Dinesh Kumar Singh,JJ. Eighteen accused persons were initially put on trial by framing charges under Section 302/149 of the Penal Code by the learned Sessions Judge, Siwan in Sessions Trial No.83 of 1984. Some of the 18 accused persons had also distinctly been charged for committing offences under Sections 147, 323, 147 and 302 of the IPC. Accused Rajman Choudhary @ Raj Choudhary had distinctly been charged for offences under Sections 148 and 302 of - 2 - the Penal Code. Likewise, appellant Bhagwati Choudhary had been charged distinctly for committing offence under Section 148 and 307 of the Penal Code. While delivering the judgement on conclusion of the trial on 8.4.1988, the learned trial Judge acquitted 12 of the accused persons whereas conviction was recorded against the five appellants of Cr.Appeal No.194 of 1988 as also the solitary appellant Rajman Choudhary @ Raj Choudhary of Cr.Appeal No.195 of 1988. As regards appellant Rajman Choudhary @ Raj Choudhary, he was reported dead and as such, his appeal(Cr.Appeal No.195 of 1988)stood abated. We have considered the remaining appeal on behalf of the five appellants. 2. The above noted five appellants were found guilty under Sections 302/149 of the Penal Code and each of them was directed to suffer rigorous imprisonment for life. Appellant, Bhagwati Choudhary was distinctly convicted under Section 307 of the Penal Code and was directed to suffer rigorous imprisonment for life in addition to the conviction and sentence passed against him for committing the offence under Section 302/149 of the Penal Code. 3. The facts of the case may be narrated in short. The informant, Chandeshwar Chaudhary who could not be examined on account of dying during the pendency of the - 3 - trial, alleged in his fardbeyan Ext-2 that after having attended the call of nature at 6.30 A.M., he was washing his hand on the tube well of one Navrang Chaudhary. He saw that accused Mundrika Chaudhary was grazing his sugarcane plants in the field situated south of his house. The father of the informant, namely, Ram Subhag Singh went to drive away the buffalo from the field and he was chased by accused Mundrika Choudhary. Ram Subhag Singh fled away from there raising an alarm of Bachao Bachao and reached his wheat Khalihan. In the meantime, 18 accused persons named in the FIR, emerged from a maize field. They were having different weapons in their hands, like, bhala, lathi, farsa, etc. The informant also reached his Khalihan. It is alleged that acquitted accused Rambabu Choudhary ordered the deceased appellant Rajman Choudhary @ Raj Choudhary to kill Ram Subhag Singh on which he dealt a bhala blow on his throat on its front. Ram Subhag Singh fell down on the ground and was wreathing. In the meantime, other accused including appellants Heera Lal Choudhary, Basisht Choudhary and Shankar Choudhary started giving lathi blows to the deceased. The informant stated that he attempted to save his father but appellant Bhagwati Choudhary gave a bhala blow in his chest and the informant also fell down on the ground and started raising a cry of Bachao Bachao when he was given lathi blows by - 4 - acquitted accused Mahesh Choudhary, Bhoj Choudhary and Dhanesh Choudhary. His full brother Nagina Choudhary(P.W.5), his cousin Ram Bachan Choudhary(P.W.6) and Ram Naresh Choudhary(P.W.4) came there. The three were also assaulted by acquitted accused Mundrika Choudhary, Satya Narayan Chaudhary, Sri Ram Chaudhary, Ganesh Chaudhary, Ramakant Choudhary, Sri Kant Chaudhary, Harinder Choudhary and Harihar Choudhary with lathi, farsa and bhala as a result of which P.Ws.4, 5 and 6 were also injured. After having assaulted the informant; his father and brothers, the accused persons ran away towards their house situated in west. It was stated that the occurrence had been witnessed by Narbadeshwar Mishra(P.W.3), Satyanarayan Choudhary(not examined) Chhakauri Choudhary(P.W.2), and Navrang Choudhary(not examined). It was stated that the occurrence had taken place only because the field was being grazed by the cattle. 4. Ext-2 was recorded by S.I. S.K.Sharma(P.W.8) in Mairwa state dispensary at 10 A.M. P.W.8 issued the injury certificates in respect of the injured persons. He, thereafter, sent the dead body which was lying in the verandah of the hospital as may appear from the inquest report Ext-4, to Sadar hospital, Siwan. P.W.8 thereafter went to the place of occurrence situate in the village on 10.5.1983 at 4.30 P.M. and inspected it which has been - 5 - described by him in paragraph 4 of his evidence. On perusal of the evidence of P.W.8, we do not find that he had inspected the field which was allegedly grazed by accused Mundrika Choudhary by his buffalo and had found the sugarcane plants grazed. After closing the investigation, the I.O. sent up the accused persons for trial which ultimately ended in the judgement presently being assailed for us. 5. The defence of the appellants was that there was some Panchayati for the resolution of the dispute which was admittedly existing between the parties and the same was not being resolved. It turned out in a melee and a free fight in which some or the other than the informant and witnesses were injured and Ram Subhag Choudhary who was an old person also died. It was pleaded by the defence through a specific case presented by them in court through a complaint petition which appears sent to the police station for registering a case and appears admitted by P.W.8 in paragraph-7 when he stated that he had received the copy of the complaint petition against some of the witnesses. 6. The prosecution examined a total number of 13 witnesses in support of the charges. Out of whom, P.W.5 Ramnagina Choudhary and P.W.7 Nageshwar Choudhary who were also injured, were tendered for cross-examination. The - 6 - other witnesses, like, P.Ws.1, 2, 3, 4 and 6 came to depose as eye witnesses to the occurrence. Dadanji Dwivedi was examined twice as P.W.9 and 12 and we treat him as P.W.9 only. He proved the signatures and writings on different prosecution documents. P.W.10 Daroga Mishra had produced station diary entry nos.195 and 197 of the concerned police station and the two documents have been marked Exts-9 and 9/1. P.Ws.11 and 13 are the two doctors, out of whom P.W.11 Dr.M.Ahmad had held postmortem examination on the dead body of the deceased and had issued postmortem examination report Ext-7. P.W.13 Dr. Bachchan Prasad had examined six injured persons on the side of the informant and had issued the injury reports Ext-3 to 3/5. 7. The defence had produced two D.Ws. out of whom D.W.1 Lalan Prasad had tendered his evidence, the copy of the complaint petition which was filed by accused Mundrika Choudhary against the witnesses, informant and others and thus, the complaint petition filed by the defence has been marked Ext-A. D.W.2 Dr. Nawal Kishore gave evidence that he had examined Harendra Choudhary while he was posted in sadar hospital, Siwan on 10.5.1983 besides examining appellant Bhagwati Choudhary and had found quite some good number of injuries on the persons of the two. 8. It was contended by Sri Anil Kumar Singh, the - 7 - learned counsel appearing for the appellants that from the evidence of witnesses, like P.W.1 Singhasan Choudhary and P.W.4 Ram Naresh Yadav the 18 accused persons were belonging to 7 or 9 families as may appear from their respective paragraphs 11 and 6. It further appears from the consideration of the evidence of each and every witness right from P.W.1 to P.w.4 that the informant and the witnesses were also either belonging to the same family or any of them had deposed against the accused in any earlier criminal litigation or had been accused in any criminal case filed by any of the accused persons. It was further contended that the witnesses are not uniform when they were stating as to where the occurrence had taken place and the genesis of the occurrence was not established. It was further contended that almost all the witnesses had made embellishments in their statements to which their attention was drawn and the same was proved by the I.O. of the case P.W.8. It was, as such, contended that the prosecution had failed to establish the charges. 9. Sushri Shashibala Verma has also conceded that the evidence which is available on the record of the case appears not sufficient so as to recording a finding that the charges had been established to the hilt. Besides, the learned Judge was accepting the same evidence for convicting some of the accused persons and at the same - 8 - time he was acquitting other accused persons, who were also bearing similar allegations and against whom also there was also same evidence which was against the convicted accused. Sushri Verma, learned counsel appearing for the State, has submitted that the learned trial court does not appear giving any cogent reason as to how he could be reading the same evidence for acquitting some of the accused while convicting the others who faced similar allegations. 10. The enmity is so much so between the parties that even a person which is out of the caste of the informant and the witnesses, like, Narmdeshwar Mishra(P.W.3) admitted in paragraph-11 of his evidence that his grand father had been murdered sometimes back and it was suggested to him that Suba Choudhary who was the brother of Ram Subhag Choudhary had deposed in favour of the prosecution case. What was attempted to be suggested to P.W.3 was that he was holding some interest with the informant and the deceased. Besides, there is another angle of enmity between the witnesses, as one of the accused Mundrika Choudhary was the full brother of P.W.4 Ram Naresh Yadav as appears admitted by him in paragraph-7 at page 27 of the paper book. Not only that in paragraph-8 the witness has stated that he had initiated a proceeding against the above noted accused Mundrika - 9 - Choudhary, his full brother, under Section 107 Cr.P.C. In the same paragraph, P.W.4 Ram Naresh Yadav has further stated that there had been substantive criminal cases against the two brothers and some of the accused of the present case had been made accused with Mundrika Choudhary by P.W.4. What we want to note is that when it could be the background of witnesses that they could even be pitted against their own full brothers and if there could be series of criminal litigations earlier fought between the parties, then it could be very difficult for a court to place explicit faith or even implicit faith upon the evidence of such a witness. The court has to trade very, very cautiously and if it comes across any circumstance which may appear from the evidence of such witnesses, justifying the rejecting the evidence of such witnesses, it must do it. 11. As regards the submission about the interestedness of the witnesses it may be pertinent to point out that P.W.1 in paragraph-11 of his evidence has stated that accused persons came from seven different families. In the same paragraph P.W.1 has stated that the deceased appellant Rajman Choudhary @ Raj Choudhary was an employee working somewhere in Kolkata and was drawing a monthly salary of Rs.2,000/- and that all elderly members of his family had been made accused. Similarly P.W.4 in - 10 - paragraph-6 of his evidence has stated that the 18 accused persons belong to nine different families. P.W.4 has given the family-wise detail of the accused and has stated that the two family members of accused Mundrika Choudhary were accused in the present case and they were Mundrika Choudhary himself and Harendra Choudhary. Likewise, two family members of Baboo Ram, namely, Hansh Ram and Vashist were also accused. Four family members of accused Rajman Choudhary, namely, Heera Lal, Sri Ram Choudhary and Ganesh, besides, Rajman Choudhary himself were also accused. our family members of Bhagwati Choudhary, i.e., three of his sons and he himself had been impleaded as accused while Shivbalak Choudhary with two of his sons had been arrayed as accused. This is one aspect as regards the relationship of the accused persons and how they had been impleaded in the case. 12. The other aspect which we find is that almost all the witnesses also belonged to the same families or they appeared in one group and appear litigating against the accused persons either by filing a case or by deposing in a criminal case. Interestedness on this line could be gathered from one fact that even a person like Narmdeshwar Mishra(P.W.3), who could be out of the caste of the witnesses and the accused, also appears interested to us. He was cross-examined in paragraph-11 of his evidence - 11 - and he admitted that his grand father Rajeshwar Mishra was murdered. Though he has denied, but it appears suggested to him that Suba Choudhary who was the brother of the deceased Ram Subhag Choudhary had deposed on behalf of the prosecution in that murder case. As such, it was made out to be pointed out to us that Narmdeshwar Mishra may also have interest in the prosecution and may be deposing against the appellants to pay up his old debt which his family member owed be on account of Suba Choudhary, the brother of the deceased having deposed in the case for the prosecution which was tried for the murder of his grand father. The third angle of animosity could be viewed from evidence of P.W.4 Ram Naresh Yadav he has admitted in paragraph-7 of his evidence at page-27 of his evidence at page 27 of the paper book that accused Mundrika Choudhary was his full brother and both of them were residing in the same house. But what is the relationship could be gathered from paragraph-8 of his evidence. P.W.4 has admitted that he had initiated a proceeding under Section 107 of the Cr.P.C against his full brother Mundrika Choudhary and accused Shivbalak Choudhary and Hiralal Choudhary. He has further admitted that he filed a criminal case in the year 1979 against appellants Bhagwati Choudhary, Shankar Choudhary, Heera Lal Choudhary and accused Ganesh, Mahesh and Shivbalak Choudhary and on the day on which P.W.4 was - 12 - deposing, that case was still pending in court. It further appears from the same paragraph that his full brother Mundrika Choudhary had also lodged a counter version against the same accused in which P.W.4 Ram Naresh Yadav and witnesses Ramnagina Choudhary(P.W.5), Nageshwar Choudhary(P.W.7), Chhakauri Choudhary(P.W.2) and other were accused. Thus, it appears to us that the parties were baying for the blood of each other. This is the background which was pointed out to us and in this background of the relationship we have to appreciate the evidence of the witnesses and thereafter we have to consider other circumstances attending upon the case. At the same time, we have also to consider as to whether the witnesses could be competent enough to depose in the case as eye witnesses and, further, whether their evidence inspires confidence. 13. The first thing which has struck us the most is that the witnesses appear not delivering the truth to the court. The inclination of the witnesses to come into the witness box and to give evidence implicating the accused persons so that they could be convicted and sentenced, appears quite clearly to us. One example on the above could be cited by us. There are six injury reports in respect of the witnesses who claimed themselves also being assaulted and injured at the hands of the accused - 13 - persons. One such injury report of Ramkaran Choudhary who has not been examined, but who was also hit allegedly by the accused persons, appears going to the doctor for his examination and he claimed that he was also assaulted by the accused and as such the investigating officer had seen his person and had found a wound somewhere on the left maleolus and as such had issued the injury certificate to the medical officer for obtaining the injury report. That injury report has been marked Ext-3/1 and we find that the doctor on examination found that it was an old injury on the left leg below the ankle joint which was of about 15 days. It may be pertinent to point out that Ramkaran Choudhary was examined at 5 P.M. on 27.5.1983 though the occurrence had taken place on 10.5.1983. There is no explanation coming from the prosecution as to why he concealed himself and did not come forward before the investigating officer to give his statement and also to allow himself being examined by a doctor just after the occurrence. Besides, he did not come forward to give evidence in the court. 14. That is not the end of the matter. We find that two of such witnesses, like, P.W.5 Ramnagina Choudhary and P.W.7 Nageshwar Choudhary who were also allegedly assaulted by the accused persons and whose injuries were reported by the doctor P.W.13 by Exts-3 and - 14 - 3/4 were simply tendered for cross-examination. What was the reason that they were not allowed to give their full evidence before the court. Probably, the two witnesses might not have agreed to depose falsely against innocent persons and to fell a false story to the Court. One of the witnesses, namely, P.W.7 Nageshwar Choudhary was the father of the deceased and it could not be said that his presence was not probable at the place of occurrence. He was an injured witness, but he was not examined in full and his story about the occurrence, is still under the wraps. Similar is our view as regards Naresh Choudhary and Bachcha Choudhary who had been examined by P.W.13, the doctor who examined the injured. The doctor issued Exts-3 to 3/5 the injury certificates after having examined Naresh and Bachcha. But again, neither Naresh Choudhary nor Bachcha Choudhary came to depose in the court as regards the manner of occurrence. 15. So far as the other witnesses are concerned P.W.2 Chhakauri Choudhary could not identify any of the accused persons while he was standing in the witness box. He was allowed to walk to the accused and again he could not identify the two accused persons, namely, a boy standing there and Rajman Choudhary the main assailant. He stated in paragraph-5 that he had an impaired vision for about 6-7 months from the day he was deposing in - 15 - court. Besides, his attention was drawn to his statements as regards his claim of being present near the scene of occurrence and further that he had seen the occurrence as eye witness. His statements were proved by P.W.8, the investigation officer, in paragraph-10 of his evidence which appears at page-43 of the paper book. Similar is the case with all the witnesses that their claim having seen the occurrence and the story which they stated about the accused persons assaulting the deceased and others had never been made to the police and the attention of those witnesses was drawn to such facts and those facts have been proved by P.W.8 in other paragraphs, like, 11 and 12, etc. Thus, we find quite some difficulty in accepting the claim of the witnesses that they could be present at the scene of occurrence. The witnesses have admitted that there was a counter case also and they are accused in that case. Might be that they could be concealing some of the facts from the court which had really happened on that day of occurrence and as such they were making improvement in their statements while giving evidence in court. 16. The genesis of the case is that accused Mundrika Choudhary was grazing the sugarcane plants of the informant in his field and seeing this the deceased went there with a lathi to drive away the buffalo upon which accused Mundrika Choudhary chased the deceased and when he - 16 - had reached the Khalihan, other accused persons emerged from a maize field when the occurrence took place there. P.W.8, the investigating officer of the case, has deposed that he had gone to the P.O. village and had inspected the place of occurrence as per his evidence in paragraph-4. He inspected the place of occurrence and as per the description given in that paragraph by P.W.8 it was simply a Khalihan or a place which was away from village where he found some blood on that ground. That blood was seized by him. He has prepared Ext-6 the sketch map also and that map appears on the record and we find that it does not appear in consonance with the evidence given by P.W.8 in paragraph-4. P.W.4 has stated that the blood which was found by him was the place situated at a distance of 30 feet in south east from the western ridge of the field. Besides, it was 28 feet in east of the southern bridge of the field. Thus, it could be a place somewhere in the centre of the field. However, when we come to the evidence of the witnesses what we find of P.W.1 in paragraph-15 is that the deceased had been assaulted at a distance of about 15 laggas in the east south of the house of Mundrika Choudhary. Some of the witnesses have stated that there was no road intervening between the house of Mundrika Choudhary and Khalihan of the deceased. But, the sketch map Ext-6 and the evidence of P.W.8 point out that there - 17 - was the district strick broad road was intervening between the two places and we could safely assume that there could be some considerable distance between the Khalihan and the house of Mundrika Choudhary. One of the witnesses, like, P.W.1 has stated in paragraph-13 that the Khalihan or the Sahan of the house of Mundrika Choudhary were so mixed up as appearing the same plot. The above evidence appears completely in opposition to which was given by I.O. of the case. The description of the place of occurrence by other witnesses, like, P.W.3 does not go hand in hand with the description of the place of occurrence given by P.W.8. We could have still allowed the prosecution to argue that the man could have been murdered somewhere in the field which was being used as Khalihan by the deceased which fact has also been stated by P.W.8, the I.O. of the case. The assault had taken place in the Khalihan. This could be said with quite some certainty because the blood was found fallen almost in the centre of that Khalihan. What we want to point out is that no sugarcane plant was found grazed and as such the very initial story that the occurrence was triggered on account of the grazing of the sugarcane plants by accused Mundrika Choudhary appears not established. The evidence of the witnesses varies on the place where the deceased was allegedly assaulted. We could assume that the P.W.5 might - 18 - not have been present near the place of occurrence and as such there is variance in their evidence in giving the exact place or almost the exact place where the deceased was assaulted. None of the witnesses has stated that there was any