CRIMINAL APPEAL (DB) No.253 OF 1988 With CRIMINAL APPEAL (DB) No.254 OF 1988 ----- Against the judgment of conviction and order of sentence dated 23rd day of April, 1988 passed by Shri Tarkeshwar Prasad, 1st Additional Sessions Judge, Arra, Bhojpur in Sessions Trial No. 72 of 1984. 1. RAM KUMAR CHAUDHARY 2. AYODHYA CHAUDHARY BOTH SONS OF BHAGELU CHAUDHARY, RESIDENT OF VILLAGE ANAITH, POLICE STATION-ARRAH NAWADAH, DISTRICT-BHOJPUR. -----------------------(Appellants) (in Cr. App. No. 253 of 1988) 1. BHUSHAN CHAUDHARY, SON OF CHANDRAMA CHAUDHARY 2. ACHHAY CHAUDHARY, SON OF JHAGARU CHAUDHARY BOTH RESIDENT OF VILLAGE ANAITH, POLICE STATION-ARRAH NAWADAH, DISTRICT-BHOJPUR. -----------------------(Appellants) (in Cr. App. No. 254 of 1988) Versus THE STATE OF BIHAR ------------------(Respondents) (in both the appeals) For the Appellants : Mr. Neeraj Kumar @ Sanidhya (Adv.) (Amicus Curiae) (in both the appeals) For the State : Ms. Shashi Bala Verma (APP) (in both the appeals) P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ----- S. K. Sharma & D. K. Singh, JJ. On repeated calls none appeared on behalf of the appellants. Hence, Mr. Neeraj Kumar @ Sanidhya was appointed as Amicus Curiae to assist the Court. 2. Four appellants, through the aforesaid two appeals, have challenged the judgment and order of conviction dated 23rd April, 1988 passed 2 in Sessions Trial No. 72 of 1984 by the learned First Additional Sessions Judge, Arah, whereby and whereunder the appellants namely Ram Kumar Chaudhary and Ayodhya Chaudhary (in Cr. App. No. 253 of 1988) were convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. Both the appellants have also been convicted under Section 27 of the Arms act and have been sentenced to undergo rigorous imprisonment for two years and both the sentences were directed to run concurrently, whereas the appellants namely Bhushan Chaudhary and Achhay Chaudhary (in Cr. App. No. 254 of 1988) have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The period undergone during the trial were directed to be set off. 3. The prosecution case as per the fardbeyan of Paras Chaudhary (P.W.7) recorded on 20.09.1983 at 1 a.m. at Arah, Nawadah police station in presence of the informant’s brother Vishwanath Chaudhary (P.W.5) and nephew Ashok Kumar Chaudhary (P.W.6) is to the effect that the informant’s younger brother Hari Nandan Chaudhary after taking his meal, went 500 yards north west to guard the sugar cane crop, where both, the 3 informant and his deceased brother, slept on the Machan (Bamboo bed). In the mid-night the informant felt the urge of easing out, hence, he went in the south direction about 5-6 steps. In the meanwhile, the informant became suspicious on finding four persons coming from northern direction. Hence, he concealed himself in the sugar cane field and started watching them in the moonlit night. It was seen by the informant that all the four persons reached near the Machan of the informant, where the informant’s brother Hari Nandan Chaudhary (deceased) was sleeping. The four persons, identified in the moonlit night, were co- villagers of the informant, namely Ram Kumar Chaudhary, Ayodhya Chaudhary, both armed with gun and Bhushan Chaudhary, Achhay Chaudhary armed with Farsa. Firstly, Ram Kumar Chaudhary fired at the informant’s brother, thereafter, Ayodhya Chaudhary also fired and subsequently all the four accused persons fled away towards north. After sometime, the informant came out from the cane field and went near his brother who was already dead and his body was soaked with blood. Thereafter, the informant started screaming and crying and then the informant’s brother Vishwanath Chaudhary (P.W.5), Jadu Chaudhary (P.W.4) and co-villager 4 Tulsi Chaudhari (P.W.3) and many other people came to the place of occurrence. Then the informant conveyed to them about the entire occurrence. The reason for the commission of the offence has been alleged that the deceased - brother of the informant used to make Pairvi in a case between Brij Bihari Chaudhary and the accused persons. The informant left his family members and the villagers near the dead body and went to the police station to lodge the First Information Report (Ext.F). 4. Kapil Muni Chaudhary and Sitaram Chaudhary have signed the fardbeyan (Ext. E) as attesting witnesses, though they have not been examined. On the basis of the aforesaid fardbeyan, Arah Nawadah P.S. Case No. 163 of 1983 was registered on 20.09.1983 under Section 302 of the Indian Penal Code and Section 27 of the Arms Act against the four accused persons, who are the appellants. 5. The police during the investigation found the case to be true and submitted the charge sheet. Subsequently, after commitment of the case, the charges were framed against Bhushan Chaudhary and Achhay Chaudhary under Sections 302/34 of the Indian Penal Code whereas Ram Kumar Chaudhary and 5 Ayodhya Chaudhary were charged under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. 6. The prosecution, in order to substantiate its case, has examined ten witnesses, of which Kishori Prasad (P.W.1) and Jaglal Prasad (P.W.2) are formal witnesses, who have proved the seizure list as well as the inquest report. Tulsi Chaudhary (P.W.3) is co-villager of the informant, Yadu Chaudhary (P.W.4) and Vishwanath Chaudhary (P.W.5) are brothers of informant, Ashok Kumar Chaudhary (P.W.6) is nephew of the informant. P.Ws. 3, 4 and 5 claim to have seen the accused persons fleeing away from the place of occurrence. P.W.6 is a hearsay witness who claimed to know about the occurrence through P.W.7, Paras Chaudhary. P.W.7 is the informant and the elder brother of the deceased who claims to be the only eye-witness of the occurrence. Deo Nath Chaudhary (P.W.8), is the Investigating Officer who recorded the fardbeyan, verified the place of occurrence but on the very next day handed over the investigation to P.W.9, Gauri Shankar Singh S.I. of police. P.W.10 is Doctor Amar Verma who conducted the post-mortem (Ext.5) over the dead body of the deceased. 6 7. The defence has also examined four witnesses. They are Shiv Naresh Singh (D.W.1), who has proved the unit register of Anaith village marked as Ext.A, Pradhan Sachidanand Sinha (D.W.2) has proved the voter list of the year 1984, i.e., Ext. B and B/1, Gorakh Singh (D.W.3) who has proved the information collected on the requisition of the defence marked Ext.C, Ram Kumar Chaudhary (D.W.4) (one of the appellants) who has proved the First Information Report and the fardbeyan of Arah, Nawadah P.S. Case No. 84 of 1983 (Ext.E). 8. The learned trial court relying upon the evidence of sole eye witness (P.W.7) held the four appellants guilty and accordingly the judgment of conviction has been passed. 9. Now, this Court has to see whether on the basis of evidence of the sole eye witness (P.W.7), the prosecution has been able to prove the case beyond shadow of reasonable doubt or the evidence of P.W.7 is credit worthy to the extent that the impugned judgment and order of conviction needs no interference. 10. The death of the informant’s brother Hari Nandan Chaudhary, due to firearm injuries in a sugar cane field on a Machan, 500-600 yards 7 south to the informant’s house is an admitted fact. The only dispute is with regard to the manner of the occurrence. 11. The First Information Report suggests that both Ram Kumar Chaudhary and Ayodhya Chaudhary fired at the deceased from close range and after sometime, subsequent to the fleeing of the accused persons from the place of occurrence, the informant came out of the sugar cane field to reach the place of occurrence and found his brother dead and thereafter, he raised alarm. Hence, as per the informant’s version itself P.Ws. 3, 5 and 6 reached the place of occurrence to see the dead body. Hence, admittedly none of these three First Information Report named witnesses have seen the actual occurrence. Admittedly, as per the fardbeyan of the informant itself, the Informant (P.W.7), is the only eye witness of the occurrence. P.W.7 claims to have been sleeping with the deceased on the Machan (raised bamboo bed) at the relevant time and just before the occurrence, he went to ease out and when he saw the accused persons coming variously armed, he got scared and concealed himself in the sugar cane field. It is the admitted case of the prosecution that the field in which the place of occurrence is 8 situated, had standing sugar cane crop. The informant has claimed to watch the occurrence from about ten feet. The height of sugar cane crop has been described by P.W.3 in paragraph-4 as (five hands), neck to head height of the male human being, whereas P.W.8 in paragraph-13 has described the height of the sugar cane crop as man’s height. The height of the crop makes the visualization of the occurrence by the informant, as doubtful, particularly in view of the fact that the Machan height has been described by the informant (P.W.7) in paragraph-24 as 1½ feet (hands) from ground level. His evidence in paragraph-24 further depicts that the Machan was in a hut. This fact has been further corroborated by the evidence of P.W.8, the Investigating Officer, in paragraph-13 where he had described the place of occurrence by stating that the height of the sugar cane crop was more than a man’s height. P.W.7 has further stated that the Machan was shaded from the top and the height of the shade was about three hands but the same was slanted from the top towards east and west. The slanted shade of the Machan also makes the visualization of the occurrence almost impossible by P.W.7, from the sugar cane field. 12. The evidence of P.W.7 apart from its 9 inherent inconsistency also gets contradicted by the evidence of the doctor, P.W.10. The informant in the fardbeyan has specifically claimed that Ram Kumar Chaudhary and Ayodhya Chaudhary fired one by one at the deceased, whereas the evidence of doctor suggests that the victim received basically one injury, lacerated wound of 3”x2” on the left side of the head and other injury is lacerated wound of 6”x5” on the right side of the skull near the posterior part. Injuries no. 1 and 2 are communicating to each other. In paragraph-8 of the evidence, P.W.10 has clearly stated that the projectile came out through injury no. 2, as no projectile was found in body of the deceased which suggests that the deceased received only one injury. Hence, the claim of the informant about the victim receiving two gun shot injuries, gets clouded in view of the evidence of P.W.10. 13. The credibility of P.W.7 further gets clouded in view of the fact that in the First Information Report he does not state the exact place of the injury received by the deceased whereas during trial he tried to make out a case that the firing resorted to by Ram Kumar Chaudhary caused injury on the temporal region of the victim. While the informant has tried to slightly 10 dilute his version from the fardbeyan, when he deposed, by saying that Ayodhya Chaudhary made the firing but he does not specify about injury being caused. It appears that this development in the evidence of P.W.7 has been made after examining the post-mortem report which reflects only one injury. 14. The evidence of the doctor (P.W.10) suggests that the post-mortem was conducted on 20.09.1983 at 10.45 a.m. whereas in paragraph-2 it has been stated that the time elapsed since death is within 36 hours. Admittedly, as per the prosecution version, the post-mortem was conducted within 12 hours of the occurrence. Hence, estimating such a long gap between the death and the conduction of the post-mortem creates doubt about the actual timing of the occurrence. Though, in the cross-examination, the doctor has admitted that when the time gap is between 10-12 hours then it is described as within 12 hours assessing that there can be a difference of 2 hours on the either side, but assessing the time gap between the death and the post-mortem about 36 hours, suggests that the doctor while conducting the post-mortem assessed the death to have occurred at least much more than 24 hours prior to the post-mortem. 11 15. The credibility of P.W.7 has further to be examined in view of his unreasonable conduct. It is the specific case of the informant in the fardbeyan that on alarm being raised, P.Ws. 3, 5 and 6, who are family members, reached the place of occurrence and the informant left his family members and other villagers at the place of occurrence and went to lodge the First Information Report. Though, the informant in the fardbeyan claims to have gone to the police station alone but in paragraph-20 of his evidence the informant claims to have gone to police station with his two brothers Kapil Muni Chaudhary and Sitaram Chaudhary (both not examined) and Yadu Chaudhary (P.W.4). Whereas P.W.8 has stated in paragrpah-11 that along with the informant (P.W.7), Vishwanath Chaudhary (P.W.5), Ashok Kumar Chaudhary (P.W.6), Kapil Muni Chaudhary and Sitaram Chaudhary (both not examined) came to the police station which proves this fact that the informant P.W.7 had not deposed truthfully during trial. The fact, that the informant was accompanied by Kapil Muni Chaudhary and Sitaram Chaudhary gets proved from the fardbeyan itself, as these two persons are the attesting witnesses to the fardbeyan. Though, the informant claimed these two witnesses to be his 12 brothers but both have not come forward to support the prosecution case, which further creates doubt about the prosecution case. Moreover, the presence of P.Ws. 4, 5 and 6 at the police station, with the informant contradicts the version of the informant as recorded in the fardbeyan that he left P.W. 5 and 6 at the place of occurrence. Furthermore, in paragraph-20 of his deposition, the informant also claims to accompany Yadu Chaudhary (P.W.4) to the police station which gets falsified by the averment in fardbeyan and the evidence of the Investigating Officer in paragraph-11 where he does not talk about the presence of P.W.4 at the police station. 16. The defence has brought on record the unit register marked as Ext.A and the voter list of the year 1984 as Ext.B/1, which suggest that the informant had a ration card earlier and Tulsi Chaudhary’s (P.W.3) name was there in the old ration card. The credibility of P.W.7 further comes under cloud, in view of the fact that suggestions to the aforesaid effect were given to the informant about his ration card and his being related to P.W.3, Tulsi Chaudhary. 17. Hence, it appears that the informant did not come to the court with clean hands to 13 depose. So far as P.Ws.3, 4 and 5 are concerned, they have not seen the actual occurrence but they claimed to have seen the accused persons fleeing away from the place of occurrence. It is the specific case of the informant that after the occurrence when the accused persons fled away he waited for sometime as he was scared and then he came out from adjacent cane field and went to the actual place of occurrence where he saw the dead body of his brother and then he started screaming and raising alarm, thereafter, P.Ws.3, 4 and 5 who were sleeping in their house came at the place of occurrence. P.W.1, in paragraph-3, has stated that the distance between the place of occurrence and the house of the witnesses is 500-600 yards. P.W.3 in paragrpah-4 and P.W.4 in paragraph-2 have also deposed in the similar manner. P.W.5 in paragraph- 5 has stated that the distance between the house of the witness and the place of occurrence is 650 yards in the south east corner whereas the Investigating Officer, P.W.8 in paragraph-4 has deposed that the distance of the place of occurrence from the house of the witnesses is 500 yards south west. In the similar manner P.W.7 in paragraph-28 has also described the distance as 500 yards. P.W.3 in paragrpah-4 has stated that it 14 took 15-20 minutes for the witnesses and the villagers to reach at the place of occurrence. It appears from the above evidences that the accused persons must have travelled more than 500 yards because the informant raised alarm much after the fleeing away of the accused, from the place of occurrence. Hence, the claim of P.Ws. 3, 4 and 5 of seeing the accused fleeing away does not appear reasonable. Furthermore, in view of the fact that the place of occurrence was surrounded by the maize and sugar cane crops, the height of which has been deposed by the prosecution witnesses as well as the Investigating Officer, to be about five feet or more, which makes the visibility of accused impossible. 18. So far as P.W.3 is concerned, in paragraph-5, he has stated that his statement was recorded by the police after four days of the occurrence which creates doubt about his presence on the place of occurrence or on the alleged date of occurrence. P.W.3 in paragraph-4 has stated that he stayed for five minutes at the place of occurrence but none came there which not only impeaches the credibility of P.W.3 but also frustrates the claim of P.Ws. 4 and 5 to have reached to the place of occurrence on alarm of 15 P.W.7. 19. The inconsistency in the inter-se evidence of P.Ws. makes their reliability doubtful. P.W.5 in paragraph-8 has claimed to be the first person to reach the place of occurrence, which is, in complete contradiction to the evidence of P.W.3. P.W.6 is a hearsay witness who in paragraph-6 has claimed, to have come to know about the occurrence through P.W.7 and has specifically deposed that after his reaching to the place of occurrence, P.W.7 decided to lodge the case against the present appellants which creates doubt about P.W.7’s claim of seeing the actual occurrence. 20. Mr. Neeraj Kumar appearing on behalf of the appellants as Amicus Curiae submitted that the witnesses are interested witnesses as P.Ws.4 and 5 are the brothers of the informant (P.W.7) whereas P.W.6 is the nephew of the informant and P.W.3 is the relative of the informant though it has been denied by the prosecution but the defence has tried to prove the relationship of P.W.3 by exhibiting the voter list where P.W 3’s name is recorded along with the other family members of the informant in seriatim. Hence, no independent witness has come forward to prove the prosecution 16 case and virtually only the interested family members have come to prove the prosecution case. 21. P.W.3 in paragraph-4 and P.W.4 in paragrpah-2 as well as P.W.8 have stated that there was inhabitation near the place of occurrence but none of the local witnesses have been examined. P.W.1 in paragraph-4, P.W.4 in paragraph-2, P.W.6 in paragraph-5 have stated about the other persons reaching the place of occurrence but none of those persons have been examined rather they have been deliberately withheld. The two attesting witnesses of the First Information Report Kapil Muni Chaudhary and Sitaram Chaudhary have also been withheld. Hence, to this extent, it appears that the prosecution has deliberately withheld the independent witnesses. P.Ws. 3, 4 and 5 who claim to have seen the accused persons fleeing away, becomes doubtful in view of the fact that in the First Information Report the informant does not say that these witnesses have seen the accused persons fleeing away from the place of occurrence. It is true that the First Information Report cannot stipulate all details of the occurrence but it must incorporate the broad aspect of the prosecution case. This was one of the main aspects of the prosecution case 17 that the informant saw the occurrence and the witnesses conveyed to him that they have also identified the accused fleeing away. P.W.9 (I.O.), in paragraph-2, has specifically stated that P.W.4 never stated to have conveyed about the identity of the accused to the informant. 22. Bhushan Chaudhary and Achhay Chaudhary have been convicted under Section 302/34 of the Indian Penal Code but there is nothing on record to suggest that they were sharing common intention as there is no overt act alleged against them nor anything has been brought on record by the prosecution suggesting that they were sharing common intention. 23. So far as motive is concerned, in the First Information Report it is alleged that since the deceased was making Pairvi in a case between Brij Bihari Chaudhary and the accused persons, being Arah Nawadah P.S. Case No. 84 of 1983 (Ext.E) hence the offence was committed, but Ext.E, in no way suggests whether the informant’s side were accused or witness in the aforesaid case. Moreover, during the trial the prosecution has not tried to make any effort to prove the motive alleged in the First Information Report, though the defence has tried to make suggestions 18 with regard to litigations going on between the parties. The said suggestions have been given to P.W.7 in paragraphs- 7 and 8, but both sides have failed to prove the motive. 24. Hence, after scanning the evidence, we are unable to come to a conclusion that the informant being the sole witness, has seen the occurrence. It is a settled principle that the conviction can rest even on the testimony of single witness provided he is credit worthy but in view of the discussions made above we do not find the evidence of P.W.7 creditworthy to uphold the judgment of conviction. 25. Since we have doubted the very manner of the occurrence as suggested by the informant and his visualization of the place of occurrence from the sugar cane field, we do not find any justification for deliberating with regard to the source of identification at the place of occurrence. 26. Hence, in view of the discussions above, the judgment and order of conviction and sentence are set aside. The appellants are acquitted of the charge and since there were on bail they are directed to be discharged from liability of their respective bail bonds. 19 Accordingly, both the appeals are allowed. 27. We highly appreciate the assistance conferred by Mr. Neeraj Kumar @ Sanidhya as Amicus Curiae as well as Ms. Shashi Bala Verma appearing on behalf of the State. Let the first page and the last page of the judgment be handed over to the learned Counsel appearing as Amicus Curiae to enable him to get his prescribed fee. Patna High Court, Patna Dated 21st of September, 2010 kksinha/- N.A.F.R. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.)