CRIMINAL APPEAL No.235 OF 2004 (DB) Against the judgment of conviction and order of sentence dated 17th March, 2003 passed in Sessions Trial No. 397 of 1998 / 58 of 2003 by Sri Ravindra Mani Tripathi, Additional Sessions Judge, F.T.C. No. IV, Samastipur. ******* RAGHUNATH CHOUDHARY SON OF BIHARI CHAUDHARY RESIDENT OF VILLAGE- MATHURAPURGHAT, P.S.- KALYANPUR, DISTRICT- SAMASTIPUR …………………………………………………………………….APPELLANT Versus STATE OF BIHAR ……………………………..RESPONDENT ************ For the Appellant :- Mr. Sujit Kumar Singh, Advocate For the Respondent :- Mr. Ashwini Kumar Sinha, APP **************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma, J. This appeal has been preferred by the sole appellant named above against the judgment of conviction and order of sentence dated 17th March, 2003 passed in Sessions Trial No. 397 of 1998 / 58 of 2003 by the learned Additional Sessions Judge, F.T.C. No. IV, Samastipur whereby he was convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act for killing Most. Bhagerni Devi and he has been sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code with fine of Rs. 10,000/- and in default of payment fine he has to undergo simple imprisonment for two years. The appellant was further sentenced to undergo rigorous imprisonment for three years 2 with a fine of Rs. 1,000/- under Section 27 of the Arms Act and in default of payment of fine he was directed to undergo simple imprisonment for two months. It was ordered that all the sentences shall run concurrently. 2. The prosecution case started on the basis of a fard- beyan (Ext.3) resulting in formal FIR (Ext.4) containing the signature of informant (Ext. 1) which was recorded at the house of the informant PW 3 Jamindar Chaudhary on 29.9.1997 at 00.15 hours. The fard-beyan was given in presence of Sahdeo Chaudhary (PW 5). The informant stated that at about 9.30 PM of the preceding night he was at his Darwaja. In the mean while the appellant, Kedar Chaudhary, Yogendera Chaudhary and 2-3 unknown persons came on a Tempo from the side of Mohanpur Hat. Suddenly the tempo stopped near the Darwaja of the informant. The accused persons started abusing and asking the informant as to why he has burnt ‘Ghura’ on the road because the tyre of the tempo has got burnt. The informant replied that all the persons were arranging ‘Ghura’ on the road and when the informant has followed them then he was at no fault. Appellant got down from the tempo and he had altercation with the informant’s son and it turned into scuffle. The persons of the locality intervened and the appellant Raghunath Chaudhary went threatening with his tempo. After about one hour, Raghunath Chaudhary came along with above mentioned accused and again started shouting loudly. The informant 3 protested and requested that the matter should be settled by the persons of the society. Informant’s son also protested. Allegation is that at the behest of Kedar Chaudhary and Yogendra Chaudhary this appellant Raghunath Chaudhary shouted for killing and Raghunath Chaudhary fired from his pistol which he was carrying in his right hand. The informant bowed down and the firing struck the informant’s mother who fell down and died. The appellant and other accused persons escaped. The occurrence was witnessed by Jitendra Chaudhary (not examined), Rajendra Chaudhary (PW 2) and Abhay Chaudhary (PW 6). The fard-beyan was resulted into registration of Kalayanpur P.S. Case No. 118 of 1997 under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. After investigation chargesheet was submitted. Cognizance was taken and the case was committed to the Court of Sessions where the charges were framed and explained to the appellant to which he pleaded not guilty and claimed to be tried. 3. The defence of the appellant was of false implication on account of enmity. It has also been submitted that the parties have compromise the case. 4. The trial Court after considering the entire evidences available on record and taking into the consideration and other facts of the case, found the appellant guilty and sentenced him, as stated above. 5. Now it has to be seen here whether the prosecution 4 was able to prove its charges beyond all reasonable doubts against the appellant or not. 6. The prosecution in order to prove its case has examined 9 witnesses. They are Pramila Devi (PW 1), Rajendra Chaudhary (PW 2), Jamindar Chaudhary PW 3, Informant), Hiralal Chaudhary (PW 4), Sahdeo Chaudhary (PW 5), Ajablal Rai (PW 6), Dr. R. P. Mishra (PW 7), Shanti Devi (PW 8), Janka Ram (PW 9, Investigating Officer). 7. The documentary evidences relied upon by the prosecution are signature of the informant on fard-beyan (Ext.1), Post Mortem Report (Ext. 2), fard-beyan of Kalayanpur P.s. Case No. 118 of 1997 (Ext. 3) and formal FIR of Kalayanpur P.S. Case No. 118 of 1997 (Ext. 4). 8. Before discussing the prosecution case it is proper to go through the medical evidence which can throw a light on the cause of death. 9. Dr. R. P. Mishra PW 7 has conducted the post mortem upon the dead body of Most. Bhagerni Devi on 29.9.1997 in Sadar Hospital, Samastipur and found: (i) Lacerated wound with inverted margin with blackening and charring around the wound size ½” in diameter x cavity deep to right upper mandiblev region – wound of entry, (ii) one irregular oval lacerated wound with inverted margin 1 ½” x deep on left forehead above upper side of the left eye – wound of exit. 10. Both the injuries were communicating. Time 5 elapsed since death was 24 hours. Firearms projectile was used as weapon and death was on account of Hemorrhage caused by fire arm injury. The doctor has proved his writing on the post mortem examination report (Ext. 2). 11. Though the doctor was cross-examined but his cross-examination is of no help for the appellant because the doctor’s evidence is intact that the death of Most Bhagerni Devi on 29.9.1997 was caused by use of fire arm. 12. PW 3 is the informant. He has deposed that at about 9.30 P.M. he was at his Darwaja. This appellant and other named and unnamed accused came on a Tempo. They stopped their Tempo in front of the Darwaja of the informant. Appellant Raghunath Chaudhary started abusing and asking the informant that as to why he arranged ‘Ghura’ on the road. Informant replied that every body were arranging their ‘Ghura’ on their road and hence he has not committed any abnormal act. Thereafter, the appellant Raghunath Chaudhary got down from the Tempo and started scuffle with Heeralal Chaudhary but the villagers intervened and pacified the matter. The appellant and others went and after about an hour again six persons including this appellant came and started abusing. The informant’s wife Shanti Devi (PW 8), his mother Most. Bhagerni Devi (deceased) and Heeralal Chaudhary (PW 4) came. Everybody requested that the matter should be settled through the intervention of members of the society. Thereafter, 6 accompanying accused instigated the appellant who was carrying a pistol. The appellant fired upon the informant but he bowed down and the firing struck Most. Bhagerni Devi on her head who fell down and succumbed to her injury within few minute. The informant was going to police station for giving information along with three others then the Officer Incharge met to him in the way who came at the Darwaja of the informant where he has given his fard-beyan. The recorded fard- beyan was narrated to informant. He found it correct and then signed the same (Ext.1). Prior to this occurrence the appellant has made murders attack upon the informant which resulted into Kalayanpur P.S. Case No. 31 of 1991. He was examined in chief on 15 th July, 1999 and his part examination was conducted on that date. On the prayer for the defence his cross- examination was deferred and he was again cross-examined on 17.7.1999. Again on the prayer of the appellant his cross- examination was deferred and he was cross-examined on 5.8.1999. Again prayer of adjournment was made and cross- examination was deferred and examined on 19.8.1999. His examination was completed but this witness was recalled for cross-examination on 5.4.2002 and on recall he stated that he has filed a petition by way of compromise. 13. PW 1 Parmila Devi has stated that she was sitting at the Darwaja. At that very time this appellant came along with others and abused. Later on the accused persons returned. 7 Sometimes thereafter, this appellant came and fired aiming at Jamindar Chaudhary but he bowed down and the appellant’s firing injured Most Bhagerni Devi who fell down and died. Similar is the evidence of Rajendra Chaudhary and Heeralal Chaudhary the husband of PW 1 and son of PW 3. 14. PW 5 had gone to the place of occurrence after hearing the sound of firing. He has not seen the occurrence. He has seen the appellant escaping from the place of occurrence. 15. PW 6 Ajablal Rai had gone to the place of occurrence after hearing the sound of firing. He noticed the appellant having revolver. He stated that the appellant while escaping left the tempo at the Darwaja of PW 3. 16. PW 8 has not supported the prosecution so she has been declared hostile. She has been examined on 27th March, 2001. 17. PW 9 is the Investigating Officer. He has recorded the fard-beyan and investigated the case. The place of occurrence is a vacant place just in front of Darwaja of the brother of the informant. The dead body was found at a very short distance. The house of Jamindar Chaudhary was situated there and one Tempo bearing registration no. BPK 1697 was found there. The dead body was carrying a firearm injury on the head. 18. The witnesses have initially supported the prosecution case and were intact in their evidence that this 8 appellant having pistol came and fired on Jamindar Chaudhary who bowed down but that firing struck Most Bhagerni Devi who received injury upon her head and on account of that injury she died. 19. This occurrence is in two parts. In the first part the appellant along with others came earlier and at that time he had scuffle with the informant’s son Heeralal Chaudhary because the appellant was aggrieved from the conduct of the informant and his family who were having ‘Ghura’ on the road. Second occurrence is that after one hour of the first occurrence this appellant has come with country made pistol and has fired causing death. 20. Learned counsel for the appellant has stated that the informant had motive to falsely implicate because the appellant was made accused in a case of stabbing to informant which was also been tried before the Court. It has been submitted that the informant’s mother was killed by some one in an incident and taking benefit of her death the appellant was falsely implicated. It has also been submitted that all the witnesses are interested and relying upon their testimony is definitely dangerous. Independent witnesses have not been examined though the place of occurrence is thickly populated area but the persons of the locality were not examined. It has also been submitted that the informant’s wife has been declared hostile and she has stated that she has not seen anything 9 though she was present in the house so her evidence should have been relied upon and the informant’s evidence should have been discarded. Learned counsel for the appellant further submits that even if the evidence of the prosecution is accepted in totality then also there was no intention of the appellant at all to cause death of Most. Bhagerni Devi because the firing was also not resorted upon her. So on this score alone conviction under Section 302 Indian Penal Code is not justified. 21. Culpable homicide is an act causing death by doing an act with intention to cause death or with the intention of causing such bodily injury which is likely to cause death or with knowledge that he is likely by such act to cause death and such act amounts to culpable homicide. Where death is caused in the aforesaid circumstances then the Culpable Homicide is not murder if the offender whilst being deprived of the power of his control by grave and sudden provocation causes the death of the person who gave the provocation. In the present case, there is nothing that any such provocation was given to the appellant which could have justified his action. It was a petty matter and that too was prior to the present occurrence because the appellant along with others have gone and made complain. Then the informant has replied that the matter will be taken before the members of the society. At that time, this matter settled down but after an hour or so, the appellant came with firearm and fired leading to killing. Therefore, act of in firing was not 10 upon sudden provocation. 22. Another plea taken by the appellant is that the parties have compromised the case. This fact has been supported by the informant in his evidence. The informant’s wife has also not supported the occurrence. So on the basis of compromise, the prosecution case should have been disbelieved. 23. Section 320 of the Code of Criminal Procedure gives a complete list of offences which were compoundable. Those cases are not of serious nature rather according to Legislation, only those cases are to be decided on the basis of compromise for which there was a provision. If all the criminal cases are allowed to be compounded then this will certainly defeat the cause of justice. A serious offence has to be dealt with seriously and there can be no compromise in serious cases like the present one. The petition of compromise was given after a long lapse which shows that the defence has tried to influence the witnesses and such compromise cannot be allowed and is fit to be rejected and it is rejected. 24. It has been argued by the learned counsel for the appellant that the witnesses are family members who were having enmity and there is no independent witness. It has also been submitted that there are contradictions in the evidences of the witnesses. 25. The signature of the witnesses shows that they could hardly sign. They are not well qualified witnesses. PW 1 11 Parmila Devi has put her thumb impression. These witnesses are from the rural country side and their deposition could not be judged from the same standards of exactitude and consistency as that of urban sophisticated witnesses. Slight discrepancies in the statement of eye witnesses are not uncommon in the testimony of most truthful witnesses. They disclose truth rather falsehood. Therefore, certain discrepancies which are of very minor type cannot affect the prosecution version and the witnesses of the present case are reliable. 26. Evidence of a witness cannot be discarded on the ground of his being an interested witness. A witness would not leave the real culprit and rope in an innocent person. Evidence is first to be scrutinized on merits before proceeding as to whether the witness is interested or not. The evidence of interested witnesses has to be decided in the light of the probabilities and the previous statement and circumstances. Mere fact that a witness is a family member is not a ground to discard his evidence. Evidence of eye witness cannot be discarded because he is a family member of the informant or deceased. In the present case the occurrence is of the night. The time of occurrence is a time where the members of the house assemble and it is their time to dinner and rest. The witnesses of the house are natural witnesses and only possible eye witness of the occurrence at the time when the alleged occurrence has taken place. At the time of the occurrence of the present case, it 12 is expected that the neighbours would be in their own houses. So their presence at the place of occurrence is not vital and the witnesses who have described the occurrence are natural witnesses and they are reliable and their evidence has to be relied. 27. After considering the every aspects of the matter, I hold that the prosecution has been able to prove beyond reasonable doubt that it is appellant alone who has caused death by using firearm to the mother of the informant. Accordingly, the judgment of conviction and order of sentence against the appellant as stated above is upheld and this appeal is dismissed. (Gopal Prasad, J.) I agree (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna Dated 21st July, 2010 Avin/N.A.F.R.