CRIMINAL APPEAL No.721 OF 2004 Against the judgement of conviction and order of sentence dated 19.8.2004 and 25.8.2004 passed by Additional Sessions Judge, F.T.C.V, Jehanabad in Sessions Trial No.18 of 2004/219 of 2002(S.J.). BABBAN CHOUDHARY----------------------------------Appellant Versus STATE OF BIHAR-----------------------------------------Respondent For the appellant:- Smt. Nutan Sahay, Amicus curiae For the State:- Sri Ashwini Kumar Sinha,A.P.P. P R E S E N T THE HON’BLE SMT JUSTICE MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Mridula Mishra & Dharnidhar Jha,JJ. The solitary appellant Babban Choudhary was put on trial by the Presiding Officer, Fast Track Court No.5, Jehanabad by framing charge under Section 302/34 of the Penal Code in Sessions Trial No.18 of 2004/219 of 2002. By judgment dated 19th of August 2004, the learned trial Judge found the appellant guilty of committing the offence under Section 302 of the Penal Code and while passing sentence on 25.8.2004, the appellant was directed by him to suffer rigorous imprisonment for life as also to pay a fine of Rs.1,000/- else to suffer simple rigorous imprisonment for one year. 2. The prosecution case is contained in the FIR of P.W.14 Raj Rani Devi, mother of the deceased Munna Sao in which she alleged that in the night of the occurrence both the deceased Munna Sao and Sri Ram Paswan had eaten and 2 drank together in the house of Sri Ram Paswan and both were coming to the house of Munna Sao. The informant claimed that she was outside her house and heard the sound of firing. She rushed out to find that her son had been hit by gun shot and that the present appellant along with other accused, Nanda Choudhary and Ganga Sao, were running away towards south after having fired the shots. On proceeding further the informant found that Sri Ram Paswan was also lying after having received gun shot injuries and was wreathing in pain and narrated to the informant that it were this appellant Babban Choudhary and the other two co-accused, Nanda Choudhary and Ganga Sao, who had fired at them. The informant stated that people, who had assembled there, took injured Sri Ram Paswan to Dr. Ram Kumar Singh and he died there. 3. The reason for the occurrence as narrated by P.W.14 in her fardbayan was that there was enmity between the accused persons on the one hand and the two deceased on the other because the accused persons of the case were also accused in a case instituted for the murder of one Madhusudan Sharma and appellant Babban Choudhary had also been sent to jail in that connection. As regards co-accused Nanda Choudhary and Munna Sao, the police was on a hunt 3 for them and the three accused regularly held out threats to the two deceased that if they attempted to get them arrested by the police or informed it about their whereabouts, they would not spare them and rather kill him. 4. On the basis of the fardbayan Ext-4, the FIR of the case was drawn up and the investigation was proceeded with. The investigating officer has not been examined in this case, but we find from the paper book that inquest was held on the two dead bodies and the reports in that behalf were also prepared. The two dead bodies were sent for postmortem examination which was held by Dr. Chandra Shekhar Ajad(P.W.18). The investigating officer appears having examined several persons who could have the knowledge about the facts of the occurrence and after concluding the investigation had sent up the appellant for trial which ended in the judgment as just pointed out. 5. The defence of the appellant was that he had falsely been implicated at the instance of one Dwarika Singh, a co-villager of the appellant. In fact, no one had seen the two deceased being murdered. The further suggestion which appears given to different witnesses was that the deceased persons might have been killed by terrorists. 6. For proving the charges the prosecution examined 4 as many as 18 witnesses but, P.Ws. 1 to 11 except P.Ws.3 and 4 were declared hostile as they gave one line evidence that they did not know anything about the occurrence or as to who had killed the two deceased. P.W.3 Jitendra Thakur and P.W.4 Budhiram Paswan were witnesses of formal character and both witnesses had signed the inquest report. P.W.2 also signed as a witness on the fardbayan. So far as P.W.12 is concerned he was a witness of seizure of empty of cartridges and also of seizure of blood stained earth from the place of occurrence. As regards the other witnesses, we have just pointed out that P.W.18 had held postmortem examination on the two dead bodies. P.W.13 Jairam Paswan was the full brother of the deceased Sri Ram Paswan, whereas P.W.15 Chhathia Devi is the mother of the deceased Sri Ram Paswan. P.Ws. 16 and 17 are the wife and father respectively of Sri Ram Paswan. So far as the deceased Munna Sao is concerned, no one except his mother, who is also the informant of the case, turned up for deposing in the case. 7. As may appear from the fardbayan, the prosecution case was that both the deceased had emerged from the house of Sri Ram Paswan and were to enter into the house of Munna Sao when they were killed by the accused persons including the present appellant. The prosecution case further 5 was that the two deceased persons had eaten and drank together, but when we examined the above prosecution story in the light of the evidence of P.W.18, we find that he did not find any food particle digested or semi-digested, in the stomach of deceased Munna Sao. The mother of deceased Sri Ram Paswan, i.e., P.W.15 Chhathia Devi has stated in her evidence in paragraph-6 that Sri Ram Paswan had not eaten anything, but in the same paragraph she replied to a court’s question that he had drank some toddy and had also taken roasted meat with the other deceased Munna Sao. The doctor did not find either meat or toddy in the gut of either of the two deceased persons. Thus, we have started from here with a doubt that the initial prosecution version which was put forth by the informant in her fardbayan may not be true. 8. When we go further by wading through the evidence of P.Ws.13, 14, 15, 16 and 17 we find the prosecution case suffering from many incurable defects. The first defect which we find is on the creation of the evidence of dying declaration which was allegedly made by deceased Sri Ram Paswan to the witnesses including the informant. After we have considered the evidence of P.W.13 Jairam Paswan, the full brother of the deceased Sri Ram Paswan in paragraphs-2 and 9 6 of his deposition, we find that he has stated in his examination-in-chief that deceased Sri Ram Paswan stated to him that the present appellant along with co-accused Ganga Sao and Nanda Choudhary had shot at the two deceased and had fled away. The story of dying declaration as contained in the fardbayan is that when P.W.14 Raj Rani Devi reached near her son, she found him dead and on further going ahead she was told by Sri Ram Paswan, who was badly injured that it were the three accused persons who had shot and killed or injured them. Thus, the initial prosecution version is that Munna Sao was already dead at the time of Sri Ram Paswan had made the dying declaration. Further, P.W.13 in paragraph- 9 has stated that when he went there near the two persons who had been shot and injured, he found that deceased Munna Sao was still whispering and begging to the assailants not to kill him as they had already killed Sri Ram Paswan. The witness further clarifies that he found Sri Ram Paswan already dead. This is complete reversal of the prosecution story as regards the dying declaration which was allegedly made to the witnesses by Sri Ram Paswan. So far as P.W.14 Raj Rani Devi, the informant is concerned, she stated in her deposition in paragraph-3 when she came out of her house after hearing the sound of gun shot that she found Munna Sao alive and he 7 pointed out that it was accused Nanda Choudhary who had done it and thereafter he died. Thus, the evidence of P.W.14 does not name this appellant Babban Choudhary as the assailant of either Munna Sao or Sri Ram Paswan. The mother of Sri Ram Paswan, i.e., P.W.15 in her evidence in paragraphs- 11 and 12 has stated that when she came near her son Sri Ram Paswan she found him motionless and he was bleeding heavily and further his eyes were already closed. If this could be the state of Sri Ram Paswan then we could safely presume that P.W.14 Raj Rani Devi, the mother of deceased reached him when he was already dead. This appears further probabilized by the evidence of wife of Sri Ram Paswan, P.W.16 Binda Devi when she stated that after the occurrence she and her family members were frightened so much so that they confined themselves into their house and could not muster courage to come out of it and, further, that they came out only when the villagers had assembled there. This evidence is available in paragraph-9 of P.W.16. Thus, what we find from the reading of the above evidence is that there might be a possibility that when the witnesses reached at the scene of occurrence the two deceased were already dead. Sri Ram Paswan could not have been in a position to make any statement to any person. 9. Smt. Nutan Sahay, the learned Amicus Curiae 8 has placed reliance upon a Division Bench decision of this Court reported in 2008(2)PLJR 764 Vivekanand Mishra Vrs. State of Bihar to submit that when the prosecution wants the court to record the conviction of an accused on the basis of the evidence of oral dying declaration, the court should look for consistency in the statements which have been reproduced by different witnesses. It was contended that, as just been noted, the witnesses do not appear consistent even on the fact that Sri Ram Paswan could be alive to make the statement. What we find is that if the very fact is not believable or acceptable that Sri Ram Paswan was alive and further that he might not be in a fit state of health to make a statement, then the question of the very making of the oral dying declaration by him does not arise. We have discussed the evidence of witnesses who are very close relatives of the two deceased and we have found that Sri Ram Paswan might not be alive at the time witnesses claim having talked to him and to have come to learn about the manner of occurrence. 10. P.W.16 Binda Devi, the wife of Sri Ram Paswan besides P.W.17 the father of Sri Ram Paswan, have admitted in their evidence that the village was terrorist infested and that 4-5 murders had already been committed in the village. Besides, Sri Ram Paswan was suspected to having some 9 relationship with one Domini Devi who was the wife of one Sitaram Choudhary and the said Sitaram Choudhary had been murdered for which a case had also been instituted in which Domini Devi and Sri Ram Paswan were arrayed as accused persons. Suggestion was given to the same witness P.W.16 that might be that her husband and Munna Sao could have been killed on account of either of the two reasons as just noted above. We also see a probability coming out of the above circumstance which appears admitted by the witnesses. 11. After having gone through the evidence of the witnesses and after having considered the findings recorded by the learned trial Judge in the light thereof, we find that it was a case in which the verdict of charges not proved ought to have returned, but the learned trial Judge, unfortunately, chose to convict the appellant and further chose to inflict upon him a sentence of rigorous imprisonment for life. We find that the charge has not been proved. The appeal is allowed. The judgment of conviction and order of sentence both are set aside. The appellant Babban Choudhary is in custody. He shall be released forthwith, if not wanted in any other case. 12. We appreciate the assistance rendered by Smt. Nutan Sahay who has assisted us and has made it possible for us to dispose of the present appeal. We recommend that a fee 10 of hearing be paid to Smt. Sahay by the Patna High Court Legal Services Committee, Patna. For the above purposes, let copies of the first and last pages of the judgment be made over to Smt. Sahay. Patna High Court, Dated, the 31st of August, 2010, Brajesh Kumar/NAFR ( Mridula Mishra,J. ) ( Dharnidhar Jha, J.)