Jharkhand High Court

Satyendra Choubey vs The State Of Bihar on 8 July, 2025

Author:
Sujit Narayan Prasad

Bench:
Sujit Narayan Prasad
,
Rajesh Kumar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (D.B) No. 190 of 1994 (R)
(Against the judgment of conviction and the order of sentence both dated
30.11.1994 passed by the learned 4th Addl. Sessions Judge, Palamu,
Daltonganj in Sessions Trial No. 228 of 1991)
-----
1. Satyendra Choubey
2. Vinod Kumar Choubey
3. Virendra Kumar Choubey
All sons of Raj Kumar Choubey, R/o village Sursuria, Police Station-
Nagar Untari, District-Garhwa
..... ....... ... Appellants
Versus
The State of Bihar ... ... Respondent

With
Cr. Appeal (D.B) No. 114 of 2013

(Against the judgment of conviction dated 13.02.2013 and the order of
sentence dated 19.02.2013 passed by the learned Addl. Sessions Judge-1st,
Garhwa in S.T. No. 32 of 1999)

Deo Kumar Chaubey, son of late Arjun Choubey, r/o village-Sulsulia, PO
& PS-Nagar Untari, District-Garhwa ....... ... Appellant
Versus
The State Jharkhand ... ... Respondent
With
Cr. Appeal (SJ) No. 483 of 2013

1. Sumant Chaubey S/o Deo Kumar Chaubey
2. Rajendra Chaubey S/o Deo Kumar Chaubey
Both residents of village-Sulsuliya, PO & PO-Nagar Untari, District-
Garhwa ....... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
-------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR

-------
For the Appellants : Mr. B.M. Tripathi, Sr. Advocate
[in Cr. Appeal (DB) No.190 of 1994]
Mr. Jai Shankar Tripathy, Advocate
Ms. Nazia Rashid, Advocate
[in Cr. Appeal (DB) Nos.114 of 2013 & 483 of 2013]
For the State : Mr. Satish Prasad, APP
------
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C.A.V on 10.06.2025 Pronounced on 08/07/2025

Per Sujit Narayan Prasad, J.

1. These criminal appeals filed under
section 374 (2)
of the Cr.P.C

are linked together as these are arisen out of the same occurrence

wherefrom case and counter-case were instituted by the parties against

each other.

2. At the outset, it needs to mention here that one of the appellants,

namely, Raj Kumar Choubey in Criminal Appeal No.190 of 1994 (R), had

died during the pendency of the appeal and vide order dated 27.02.2023

Criminal Appeal No.190 of 1994 (R) qua the appellant, namely, Raj

Kumar Choubey stands abated.

3. Criminal Appeal (DB) No.190 of 1994 is directed against the

judgment of conviction and the order of sentence both dated 30.11.1994

passed by the learned Addl. Sessions Judge, Palamu, Daltonganj in

Sessions Trial No. 228 of 1991 whereby and whereunder the appellants,

above-named, have been convicted under
sections 452
,
,
/
,
/
of the IPC and sentenced to undergo imprisonment for life under

section 302
/
of the IPC. They are further sentenced to undergo RI for 7

years each under
section 307
/
IPC. They are further sentenced to

undergo RI for 3 years each for other offence under
section 452
IPC. The

appellant, namely, Satyendra Choubey has also been convicted under

section 27
of the Arms Act and sentenced to undergo RI for 3 years for

the offence under
section 27
of the Arms Act. All the sentences shall run

concurrently.

4. Criminal Appeal (DB) Nos.114 of 2013 and 483 of 2013 are

directed against the conviction dated 13.02.2013 and the order of sentence
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dated 19.02.2013 passed by the learned Addl. Sessions Judge-1st, Garhwa

in S.T. No. 32 of 1999 whereby and whereunder the appellants, above-

named, have been convicted under
sections 323
IPC. The convict-

appellant, namely, Deo Kumar Chaubey in Criminal Appeal (DB) No. 114

of 2013 has also been convicted under
section 304(1)
IPC.

5. While convicting the appellants of the Cr. Appeal (SJ) No. 483

of 2013, the learned trial Court has opined that since the appellants,

namely, Sumant Kumar Chaubey and Rajendra Kumar Chaubey are first

offenders as not previous conviction has been proved on record against

them, as such, they have been granted benefit of the
Probation of

Offenders Act
and they were directed to be released on furnishing a

probation bond of Rs.5000/- with two sureties which will be for

maintaining good conduct for two years.

6. While sentencing the sole appellant of the Cr. Appeal (DB) No.

114 of 2013, namely, Deo Kumar Chaubey the learned trial Court has

awarded sentence to undergo RI for 10 years under
section 304(1)
of the

Indian Penal Code with a fine of Rs.5,000/- under
section 323
IPC and in

default of payment of fine, he is directed to undergo SI for 1 month.

7. Before adverting to the merit of the instant appeal, it would be apt to

refer herein that this Court is conscious with the settled position of law

that the fair procedure to adopt in a matter like the present case where

there are cross cases and in the such type of cases, the same learned Judge

must try both the cross cases one after the another and after the recording

of evidence in one case is completed, he must hear the arguments but he

must reserve the judgment. Thereafter he must proceed to hear the cross

case and after recording all the evidence he must hear the arguments but
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reserve the judgment in that case. The same learned Judge must thereafter

dispose of the matters by two separate judgments. In deciding each of the

cases, he can rely only on the evidence recorded in that particular case.

The evidence recorded in the cross case cannot be looked into. Nor can

the judge be influenced by whatever is argued in the cross case. Each case

must be decided on the basis of the evidence which has been placed on

record in that particular case without being influenced in any manner by

the evidence or arguments urged in the cross case. But both the judgments

must be pronounced by the same learned Judge one after the other.

Reference in this regard may be taken from the judgment rendered by the

Hon'ble Apex Court in the case of
Nathi Lal v. State of U.P.
, 1990 Supp

SCC 145.

8. The Hon'ble Apex Court in the case of
Sudhir v. State of M.P.
,

(2001) 2 SCC 688 had reiterated the same view as aforesaid and has

observed that "it is a salutary practice, when two criminal cases relate to

the same incident, they are tried and disposed of by the same court by

pronouncing judgments on the same day. Such two different versions of

the same incident resulting in two criminal cases are compendiously called

"case and counter-case" by some High Courts and "cross-cases" by some

other High Courts. Way back in the nineteen hundred and twenties a

Division Bench of the Madras High Court (Waller and Cornish, JJ.) made

a suggestion (Goriparthi Krishtamma, In re [1929 MWN 881] that "a case

and counter-case arising out of the same affair should always, if

practicable, be tried by the same court; and each party would represent

themselves as having been the innocent victims of the aggression of the

other".
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9. Thus, it is settled connotation of law that each case must be

decided on the evidence recorded in it and evidence recorded in another

case cannot be taken into account in arriving at the decision. The Court

ought to have decided the appeal before it only on the basis of the evidence

recorded in the present case and ought not to have allowed itself to be

influenced by the evidence recorded in the cross-case.

10. It is apparent from record that there was a running feud between

two groups of the family which resulted in clash between these groups on

the same day in the same transaction culminating in filing of FIR and

complaint by the respective groups.

11. These two cases based upon FIR and complaint were

investigated separately leading to two separate criminal trials. The trials

proceeded separately though the two incidents were interconnected.

Ordinarily, these two trials ought to have been tried by the same Judge or

Court for better appreciation of the evidence and consistency in the

decisions in the trials as observed by this Court in
Sudhir v. State of

M.P.
(supra) and Nathi Lal v. State of U.P. (supra).

12. However, the trial proceeded separately resulting in two different

outcomes in which one group of accused were convicted for committing

murder of the deceased (daughter of the appellant namely Deo Kumar

Chaubey, appellant in Cr. Appeal (DB) No. 114 of 2013) and in the other

case, the other group of accused were convicted under Section 323 and

further one of the accused namely Deo Kumar Chaubey, appellant in Cr.

Appeal (DB) No. 114 of 2013 has been convicted for the culpable

homicide not amounting to murder for his own daughter (deceased) and

accordingly, sentenced under
section 304(1)
of the IPC.
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13. Thus, it is evident from the record that herein FIR and complaint

were lodged by the two disputing groups of the family relating to the same

transaction on the same day giving their own versions of the incident .

Therefore, we must proceed to consider whether, on the evidence recorded

in each case, the conviction and sentence recorded against the appellants

can be sustained.

14. This Court taking in to consideration the peculiar fact and

circumstances of the instant appeals is of the considered view that in the

ends of the justice it would be apt to consider the merit of these appeals

separately one by one.

Factual Matrix (in Criminal Appeal (DB) No.190 of 1994 (R)

15. The prosecution story of Criminal Appeal (DB) 190 of 1994(R)

in brief as per the allegation made in the fardbayan by the informant-Deo

Kumar Chaubey reads as under:

16. The prosecution case was instituted on the fardbayan of Deo

Kumar Chuabey recorded on 21.02.91 at 6.30 PM in the house of the

informant at village Sulsuliya is that on the same day at 12 o'clock the

informant was going to village Sonpurwa where a Yagya was being

performed. However, when he reached near his wheat field (plot no.1

situated towards east of his house, he saw his two nephews namely

accused Binod Kumar Chaubey and Birendra Kunar Chaubey son of

accused Raj Kumar Chaubey getting his wheat crops grazed through their

buffalo. The informant protested to it, but they did not listen and extended

threat to assault him.
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17. It has further been alleged that in the meantime, accused

Rajkumar Chaubey who is elder brother of the informant also came out

of his house and instigated his two sons to assault the informant. The

Informant, thereafter, fled away and took shelter in the house of

Kameshwar Chaubey, a co-villager. However, accused Raj Kumar

Chaubey, Binod Kumar Chaubey and Birendra Chaubey chased him and

reached at the darwaja of Kameshwar Choubey. There was no male

member in the house of Kameshwar Chaubey. The wife of Kameshwar

Chaubey requested them with folded hands to get away.

18. In the meantime, co-villager Uday Chaubey (P.W.9) also

reached there and he also requested the accused persons to go away.

Thereafter, the aforesaid three accused persons returned back to their

house. After two hours, the informant came out of the house of

Kameshwar Chaubey and went to his house. It is stated that after 10 to 15

minutes when he was sitting on a khatiya (cot), in the main entrance of his

house, at about 2.30 to 3 P.M., all the four accused, namely, Raj Kumar

Chaubey and his three sons namely Binod Chaubey, Satyendra Chaubey

and Birendra Chaubey entered into his house through the main door.

19. Accused Satyendra Chaubey was armed with a revolver whereas

remaining three accused were armed with lathi. Seeing the accused

persons, the informant went in the Angan of the house. However, all the

four accused also followed him and came in the Angan whereas accused

Raj Kumar Chaubey caught him and accused Satyendra Kumar Chaubey

and Binod Chaubey began assaulting him with fists and slaps. Accused

Raj Kumar Chaubey ordered other accused to enter into northern room of
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the house and to see the valuables. Thereupon, accused Birendra Chaubey

entered into the northern room of the house and took out Rs.5000/-which

was kept in a tin box in the said room. It is stated that thereafter the accused

persons dragged him and brought him in the main entrance dhaba of the

house where accused Birendra Chaubey and Binod Chaubey tried to

assault him with lathi, but the blow of lathi was obstructed by the roof of

the house. The informant, therefore, did not sustain lathi injury.

20. In the meantime, accused Raj Kumar Chaubey gave order to kill

the informant with the revolver. Thereupon, Satyendra Chaubey opened

fire from his country made revolver with intent to kill the informant. But,

the fire missed the target and hit Nirmala Kumari near her left ear. She fell

down and died instantly. The accused persons, thereafter took to their

heels and while fleeing away, accused Rajkumar Chaubey @ Khokhan

Chaubey left his wooden slipper of left leg and spectacle at the place of

occurrence. Accused Satyendra Chaubey also fled away living his pink

colour lungi and accused Binod Chaubey left sky colour hawai slipper.

21. On the basis of the aforesaid fardbeyan, a case being Nagar

Untari PS Case No.24/91 dated 21.2.91was instituted under
sections 452
,
,
,
,
/
of the IPC and 27
Arms Act
.

22. After investigation, the police submitted the charge sheet against

the appellants for the offences under
sections 452
,
,
,
,
/
IPC and under
Section 27
Arms Act, thereafter, the case was committed

to the court of Sessions. The statements of the appellants were recorded

under
Section 313
of Cr.P.C.
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23. Accordingly, the trial proceeded and the appellants were found

guilty by the learned trial Court for committing murder of the daughter of

the informant (appellant in Cr. Appeal (DB) No. 114 of 2013) namely

Nirmala Kumari and has been convicted for the offence under
Section 452
,
,
/
,
/
of the IPC and sentenced to undergo imprisonment

for life under
section 302
/
of the IPC. They are further sentenced to

undergo RI for 7 years each under
section 307
/
IPC. They are further

sentenced to undergo RI for 3 years each for other offence under
section
IPC. The appellant, namely, Satyendra Choubey has also been

convicted under
section 27
of the Arms Act and sentenced to undergo RI

for 3 years for the offence under
section 27
of the Arms Act. The aforesaid

order of conviction and sentence is under challenge herein.

Factual Matrix [in Criminal Appeal (DB) No.114 of 2013 with

Criminal Appeal (SJ) No.483 of 2013

24. As mentioned above, since these criminal appeals are arising out

of case and counter-case and, as such, the facts in brief are similar to the

facts of Criminal Appeal (DB) No.190 of 1994 (R) as the instant case has

been lodged after filing of protest complaint petition(Ext.B) in the Court

of ACJM, Garhwa by the informant Raj Kumar

Chaubey(appellant/accused in Cr. Appeal (DB) No. 190 of 1994).

25. In the complaint-cum-protest petition, it is alleged that on

21.02.91 at about 01.30 PM bullock of the complainant (accused/appellant

in Criminal Appeal (DB) No.190 of 1994 (R)) had grazed the wheat crops

of the accused Deo Kumar Chaubey (appellant in Cr. Appeal (DB) No.

114 of 2013) from his field. Deo Kumar Chaubey @ Onkar Chaubey,
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armed with Licence gun, went to the wheat field and started to abuse. The

complainant came out of his house and told him that what loss has been

caused to him, he is ready to pay or he may produce the ox in the Kanji

house, The accused became furious and went to his house abusing the

complainant.

26. On the same day at about 02.00 P.M., the accused Deo Kumar

Chaubey @ Onkar Chaubey, his son Rajendra Chaubey @ Susu Chaubey,

Sumant Chaubey and his wife Shardha Devi came at the door of the

complainant and started to abuse him. when the complainant came out of

his house and tried to get understand them, the accused Deo Kumar

Chaubey pointed the gun upon him.

27. In the meantime, one of the sons of Deo Kumar Chaubey

assaulted him from the back side on his head and he fell down. All three

accused persons brought the complainant on their door and after pulling

him. When Binod Chaubey, Birendra Chaubey (sons of the complainant)

saw him they came there and tried to save their father.

28. In the meantime, a fire took place from the gun of Deo Kumar

Chaubey, which hit Nirmala Kumari, the daughter of the accused Deo

Kumar Chaubey. The accused persons started to see Nirmala Kumari. In

the meantime, both the sons of the complainant brought him to their house.

The complainant in the injured condition went to the P.S. Nagar Untari.

He got his treatment in the Hospital.

29. The accused had lodged the case against complainant and his two

sons of which G.R. No. 136/91. The complainant and his sons were

remanded to jail custody. The licence gun of, accused Deo Kumar

Chaubey was examined and it was found that recent fire was done from
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the gun. The police did not register the F.I.R., when the complainant

reached Nagar Untari Police station at 03.00 PM, his statement was

recorded in the night at about 11.00 PM which was not correct.

30. In this case on the basis of the fardbeyan recorded by police at

about 23 hours on 21.02.91 on the statement of Raj Kumar Chaubey, G.R.

Case No. 137/91 was instituted
u/s 341
and
I.P.C. and 27
Arms Act
.

But when the informant Raj Kumar Chaubey found that his case has been

not been written correctly by the police, he filed protest petition on which

cognizance of the offence was taken. Arter issuance or the summons to

the accused persons and after appearance of the accused persons, the case

was committed to the court of sessions.

31. Accordingly, the trial proceeded and the appellants were found

guilty by the learned trial Court and the appellants, above-named, have

been convicted under
sections 323
IPC. Further, the convict-appellant,

namely, Deo Kumar Chaubey in Criminal Appeal (DB) No. 114 of 2013

has also been convicted under
section 304(1)
IPC and sentenced

accordingly. The aforesaid order of conviction and sentence is under

challenge herein.

Submission of the learned senior counsel for the appellants [in Cr.
Appeal (DB) No.190 of 1994 (R):

32. Mr. B.M. Tripathi, the learned senior counsel for the appellants

has taken the following grounds for interfering with the finding recorded

by the learned trial Court in the impugned judgment:

(i) There is no specific attributability, as per the evidence adduced on

behalf of the prosecution, brought on record so far as the appellants,
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namely, Satyendra Choubey, Vinod Kumar Choubey and Virendra

Kumar Choubey are concerned.

(ii) The conviction is based upon the consideration of the testimony of

all the witnesses together and the learned trial Court has found the

prosecution version to be in corroboration by taking the testimony of all

the witnesses, but while doing so the testimony of the doctor who has

been examined as PW10, as also the Investigating Officer who has not

supported the ballistic report has not been taken into consideration, as

P.W.10 doctor has specifically stated that the material recovered from

the wounds of deceased were constituent of 12 bore cartridges which

is used in gun firing and they are not used in revolver or pistols. Further

the bullet has said to be fired from the country made pistol but there is

no reference of recovery of any country made pistol in the seizure memo

rather one licensee gun has been recovered.

(iii) It has been submitted that the pellet which has been found from

the body of the deceased has not been fired from the country made pistol

thus, the entire prosecution version as recorded in the FIR wherein it

has been reported that the pellet has been fired from the country made

pistol itself vitiate the entire prosecution version.

(iv) Further, P.W.7 Gopal Mishra have not been believed by the trial

court and Rajendra Choubey (P.W.6) who is the son of the informant,

has been tendered, as such in the aforesaid circumstances the

prosecution story is not fit to be acceptable.

(v) From the deposition of Investigating Officer (P.W.15) his

description of the place of occurrence and the manner of occurrence
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alleged by informant are not consistent with the story of the Informant

given in the fardbeyan wherein it has been alleged that the shot fired,

hit on the temple of Nirmala Kumari, no pellet or marks of firing was

found on the wall or the door in which direction of the firing is said to

have been done.

(vi) Further, the prosecution has failed to explain the injuries on the

appellant namely Raj Kumar Choubey which casts grave doubt on the

prosecution story specially when the said appellant was examined on

police requisition at 4 P.M on 21.02.1991.

(vii) Further on perusal of entire evidence it will be evident that none

of the prosecution witness has stated about the premeditation among the

accused/appellants and further no evidence has been brought on record

in order to establish the common intention among the accused

appellants, therefore the application of
Section 34
IPC against all the

appellants amounts miscarriage of justice.

(viii) The learned senior counsel has taken the ground that when there

is a case and counter-case for the same transaction and there is two

different trial and in one trial conviction under
section 302
of the IPC

and in other under
section 304 (1)
of the IPC and since it is a case of

single murder and as such the conviction is either would be under

section 302
IPC or section 304 (1) and both cannot go together reason

being that if the accusation is against the present appellants based upon

that the conviction is there under
section 302
/
of IPC then what

purpose the conviction is there under
section 304 (1)
IPC against Deo
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Kumar Choubey, the appellant in Criminal Appeal (DB) No.114 of

2013.

(ix) The learned senior counsel based upon the aforesaid grounds has

submitted that the prosecution has primarily failed in establish the

charge said to be proved beyond all reasonable doubt and, as such, the

judgment of conviction passed by the learned trial Court convicting the

appellants, namely, Satyendra Choubey, Vinod Kumar Choubey and

Virendra Kumar Choubey under
sections 302
/
and
/
of the

Indian Penal Code and under other section of
IPC
, therefore, is fit to be

quashed and set aside.

Submission of the learned counsel for the appellants [in Criminal

Appeal (DB) No.114 of 2013 with Criminal Appeal (SJ) No.483 of

2013]:

33. While assailing the judgment of conviction and sentence, Mr.

Jai Shankar Tripathi, the learned counsel appearing in both the appeals has

taken up the ground that the prosecution version as recorded in the FIR,

subject matter of Criminal Appeal (DB) No.190 of 1994 (R) is also

required to be taken into consideration wherein the prosecution version is

that the pellet has been fired from the country made pistol while the

recovery is of a licensee gun belongs to Deo Kumar Chaudhary, one of the

appellants in these appeals, but admittedly the pellet which has been

recovered from the body of the deceased has not been fired from the said

licensee gun.

34. Learned trial Court has failed to take into consideration that this

very occurrence the father of the deceased namely, Deo Kumar Choubey
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has been convicted by the learned trial Court, which is apparently a

mechanical order and judgment because for one murder there cannot be

two different accused when there is case and counter case as such this case

is nothing but abuse of the process of the court.

Submission of the learned APP for the State

35. The learned APP for the state has refereed factual aspects of the

involved in the instant appeals that FIR and complaint were lodged by

the two disputing groups of the family relating to the same transaction on

the same day giving their own versions of the incident and the trial

proceeded separately being Sessions Trial No. 228 of 1991 and Sessions

Trial No. 32 of 1999 resulting in two different outcomes in which one

group of accused (appellants in Criminal appeal (DB) No.190 of

1994)were convicted for committing murder of the deceased (daughter of

the appellant namely Deo Kumar Chaubey, appellant in Cr. Appeal (DB)

No. 114 of 2013) and in the other case, the other group of accused

(appellant in Cr. Appeal (DB) No. 114 of 2013 and appellants Cr. Appeal

(SJ) No. 483 of 2013) convicted under Section 323 and further one of the

accused namely Deo Kumar Chaubey [informant in the Cr. appeal (DB)

No. 190 of 1994 (R)] has been convicted for the culpable homicide not

amounting to murder for his own daughter (deceased) and accordingly,

sentenced under
section 304(1)
of the IPC, has fairly submitted that since

herein case and counter case and for one murder there is two different

accused as such the instant appeals should be decided as per the wisdom

of the Court.

Analysis
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36. We have heard learned counsel for the parties, perused the

documents available on record as also the finding recorded by the trial

Court in the impugned judgment.

37. We have also gone through the testimonies of the witnesses as

available in the Trial Court Records as also the exhibits appended

therewith.

38. This Court, before considering the argument advanced on behalf

of the parties would like to discussed the settled connotation of law.

39. It needs to refer herein that the Hon'ble Apex Court in catena of

decision has propounded the proposition that in the criminal trial, there

cannot be any conviction if the charge is not being proved beyond all

reasonable doubts, as has been held in the case of Rang Bahadur Singh

& Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at

paragraph-22, it has been held as under:-

"22. The amount of doubt which the Court would entertain
regarding the complicity of the appellants in this case is much
more than the level of reasonable doubt. We are aware that
acquitting the accused in a case of this nature is not a matter of
satisfaction for all concerned. At the same time we remind
ourselves of the time-tested rule that acquittal of a guilty person
should be preferred to conviction of an innocent person. Unless
the prosecution establishes the guilt of the accused beyond
reasonable doubt a conviction cannot be passed on the accused.
A criminal court cannot afford to deprive liberty of the appellants,
lifelong liberty, without having at least a reasonable level of
certainty that the appellants were the real culprits. We really
entertain doubt about the involvement of the appellants in the
crime."
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40. Likewise, the Hon'ble Apex Court in the case of Krishnegowda

& Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98, has held

at paragraph-26 as under:-

"26. Having gone through the evidence of the prosecution
witnesses and the findings recorded by the High Court we feel
that the High Court has failed to understand the fact that the guilt
of the accused has to be proved beyond reasonable doubt and this
is a classic case where at each and every stage of the trial, there
were lapses on the part of the investigating agency and the
evidence of the witnesses is not trustworthy which can never be a
basis for conviction. The basic principle of criminal
jurisprudence is that the accused is presumed to be innocent until
his guilt is proved beyond reasonable doubt."

41. Further, the principle of 'benefit of doubt' belongs exclusively to

criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be

invoked when there is reasonable doubt regarding the guilt of the accused,

reference in this regard may be made to the judgment rendered by the

Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath &

Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-

7 as under: -

"7. The High Court had failed to consider the implication of the
evidence of the two eyewitnesses on the complicity of Bhagirath
particularly when the High Court found their evidence reliable.
The benefit of doubt was given to Bhagirath "as a matter of
abundant caution". Unfortunately, the High Court did not point
out the area where there is such a doubt. Any restraint by way of
abundant caution need not be entangled with the concept of the
benefit of doubt. Abundant caution is always desirable in all
spheres of human activity. But the principle of benefit of doubt
belongs exclusively to criminal jurisprudence. The pristine
doctrine of benefit of doubt can be invoked when there is
reasonable doubt regarding the guilt of the accused. It is the
reasonable doubt which a conscientious judicial mind entertains
on a conspectus of the entire evidence that the accused might not
have committed the offence, which affords the benefit to the
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accused at the end of the criminal trial. Benefit of doubt is not a
legal dosage to be administered at every segment of the evidence,
but an advantage to be afforded to the accused at the final end
after consideration of the entire evidence, if the Judge
conscientiously and reasonably entertains doubt regarding the
guilt of the accused."

42. Likewise, the Hon'ble Apex Court in the case of Krishnegowda

v. State of Karnataka (Supra) at paragraph32 and 33 has held as under:-

"32. --- --- The minor variations and contradictions in the
evidence of the eyewitnesses will not tilt the benefit of doubt in
favour of the accused but when the contradictions in the evidence
of the prosecution witnesses proves to be fatal to the prosecution
case then those contradictions go to the root of the matter and in
such cases the accused gets the benefit of doubt. 33. It is the duty
of the Court to consider the trustworthiness of evidence on
record. As said by Bentham, "witnesses are the eyes and ears of
justice.--- -

43. It needs to refer herein that The Hon'ble Apex Court, in the case

of
Allarakha K. Mansuri v. State of Gujarat
reported in (2002) 3 SCC 57

has laid down the principle that the golden thread which runs through the

web of administration of justice in criminal case is that if two views are

possible on the evidence adduced in the case, one pointing to the guilt of

the accused and the other to his innocence, the view which is favourable

to the accused should be adopted, for reference, paragraph 6 thereof

requires to be referred herein which reads hereunder as :-

"6. ------The golden thread which runs through the web of

administration of justice in criminal case is that if two views are

possible on the evidence adduced in the case, one pointing to the

guilt of the accused and the other to his innocence, the view which

is favourable to the accused should be adopted. --"

44. It needs to refer herein before laying down the aforesaid view,

the Hon'ble Apex Court in the case of
Sharad Birdhichand Sarda v. State
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of Maharashtra reported in (1984) 4 SCC 116 has already laid down the

same view at paragraph 163 which is required to be referred which read

hereunder as

"163. We then pass on to another important point which seems to

have been completely missed by the High Court. It is well settled

that where on the evidence two possibilities are available or open,

one which goes in favour of the prosecution and the other which

benefits an accused, the accused is undoubtedly entitled to the

benefit of doubt.---"

45. In the backdrop of the aforesaid settled legal position this Court

is now proceeding to consider the testimonies of witnesses which have

been recorded by the learned trial Court.

Criminal appeal (DB) No.190 of 1994

46. It is evident from record that in order to substantiate the case, the

prosecution had altogether examined 15 witnesses and they were PW1-

Sumant Kumar Chaubey, PW2-Shardha Devi, PW3-Ramgati Chaubey,

PW4- Parma Singh, PW5- Ramdeo Singh, PW6-Rajendra Kumar

Chaubey, PW7- Gopal Misir (claimed to be an eye witness), PW8-Ram

Charitra Choubey, PW9-Uday Shankar Choubey, PW10- Dr. Indreshwar

Tiwary (who conducted postmorotem over the body of the deceased),

PW11-Hawildar Mauleshwar Singh, PW12-Deo Kumar Choubey, PW13-

Dr. Sita Ram Gupta (who examined PW-12, the injured witness Deo

Kumar Choubey), PW14-Biswas Topno and PW15-Iswari Dayal (the

Investigating Officer).
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47. At this juncture it would be purposeful to discuss the testimony

of prosecution witnesses in order to answer the issues as referred in the

preceding paragraphs.

48. PW1 Sumant Kumar Choubey has deposed that on 21.2.91 at

about 2.30 P.M. he was sitting inside his house in the dhawa. His father

was sitting in the southern dhawa. His brother Rajendra Chaubey,

deceased sister Nirmala and mother Shardha Devi were also with him. He

supported the fact that all the accused persons entered into his house.

Seeing them, his father ran into his angan. However, they chased his father

and also went into the angan. Accused Satyendra

Chaubey was armed with a country made pistol whereas other three

accused were armed with lathi. Accused Raj Kumar Chaubey caught his

father and rest three accused began assaulting him with fists and slaps. He

has, thereafter, deposed on the point of theft of Rs.5000/-. Accused

persons, thereafter, dragged his father to the outer dhawa. However, all

the inmates also followed them. The accused persons assaulted his father

with lathi. He has also asserted that Nirmala Kumari had put her arm

around the body of his father. Thereafter, at the instance of accused Raj

Kumar Chaubey, Satyendra Chaubey opened fire with his country made

revolver. His father took a turn giving a jolt and the fire hit Nirmala

Kumari near her left ear as a result of which she died. The accused persons,

thereafter, fled away. He has also stated that the accused persons went

away leaving some of their belongings.

49. Attention of this witness has been drawn towards his earlier

statement before the police in his cross-examination. It appears from para
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56 of the cross-examination of the Investigating Officer (P.W.15) that this

witness had not stated before the police that Rajendra Chaubey, Nirmala

Kumari and Sharda Devi were also sitting with him. She had also not

stated that on seeing the accused, his father rushed into the angan. He had

also not stated that accused Raj Kumar Chaubey caught his father and rest

accused assaulted him with fists and slaps. However, he has states that all

the four accused were assaulting his father in the angan. As stated earlier,

this witness has not stated about the factum of theft before the

Investigating Officer. However, in paragraph 16 of his cross-examination,

this witness asserted that when the accused persons entered into his house,

he along with his mother, brother and sister were present in the inner

western dhawa of the house. In para 17 of the cross-examination, he stated

that on hearing the foot-steps he came in the southern portion of the

western dhawa where his father was sitting. In para 19 of the cross-

examination, he asserted that after seeing the accused persons, his father

ran into the angan. The accused persons also followed his father. In para-

21 of the cross-examination, he has again stated that Satyendra Choubey

was armed with a country made revolver whereas others were armed with

lathi. This witness has, thereafter, supported the entire prosecution story

in his cross-examination, he has supported the fact that his father sustained

lathi injuries and he was taken in the northern portion of the western dhawa

by the accused persons. In para 26 and 27 of the cross-examination, he

again asserted that when accused Raj Kumar Chaubey gave order to open

fire, his father was standing inside the main entrance door with his face

towards south. His sister Nirmala had put her arms around informant's

waist and was standing left to her father. This witness, his mother and
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brothers were also standing in the same dhawa. In para 30 of the cross-

examination, he has stated that accused Satyendra Chaubey pressed his

revolver of the chest of his father, but his father took a turn towards west

and deceased Nirmala, came in front of the accused and sustained the fire

arm injury near her left ear. In paragraph- 32 of the cross-examination he

has stated that firing was made from point blank range.

50. PW2 Sardha Devi is wife of the informant (the mother of the

deceased) who is said to be an eye witness and at the time of occurrence

she was standing there. She has fully supported the prosecution version.

She has deposed that on 21.2.91 at 2 PM her husband (informant) was

sitting in the southern portion of the western dhawa when all the four

accused persona entered into her house. Her husband went inside the

angan but the accused persons also chased him. Accused Satyendra

Choubey was armed with a revolver whereas other were armed with lathi.

They assaulted her husband with fists and slaps. She tried to pacify them,

but she was also pushed. She has also narrated the story of theft of cash.

She has further deposed that the accused persons thereafter dragged her

husband to the southern portion of the western dhawa. The accused

persons were also assaulting him with lathi, but the blow of lathi was

obstructed by the celling of the roof. The accused persons, thereafter, took

her husband to the northern portion of the western dhawa where Raj

Kumar Chaubey ordered Satyendra Chaubey to shoot her husband. she has

also stated that when Satyendra Choubey pointed his country made

revolver towards her husband, her husband turned towards right and

deceased Nirmala came in front and sustained fire arm injury near her left
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ear. She fell down and died. Thereafter, the accused persona fled away

leaving some of their belongings. I

51. In the cross-examination, she has stated that when the accused

persons entered into her house, she was sitting in her inner dhawa which

was situated west of her angan. She has further stated that after seeing the

accused persons, her husband ran towards the angan. The accused persons

also followed him there. In paragraph 13 of the cross-examination, she has

stated that when shooting took place, her husband was at a distance of 3

ft. from the main entrance door of the house and the accused persons were

standing close south of him. In para-14 she also supported the prosecution

story that deceased was standing left of her husband and she and other

witnesses were standing towards west.

52. In the cross-examination, P.W.2 has asserted that she had raised

hulla, but nobody turned up at the place of occurrence. In para 30 of the

cross-examination, she has stated that there was a chauki towards south of

the dead body and there was a khatiya adjacent south of the chauki over

which cover of Tosak was kept. She has denied the suggestion that at the

time of occurrence, deceased was standing about 4 to 5 ft. north east from

her father. In para 32 she has also denied a suggestion that her husband

brought accused Raj Kumar Chaubey from his house and at that time she

and her sons were also accompanying her husband. She has further denied

that subsequently accused Birendra Chaubey and Binod Chaubey also

came to rescue their father when the informant stood over the chauki (bed)

which was kept in the northern dhawa and pressed his licencee gun

towards accused Raj Kumar, but in the meantime accused Birendra
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Choubey turned the barrel of the gun towards east as a result of which the

fire hit Nirmala, who was standing at à distance of 4 to 5 ft. north east

from her father.

53. PW3-Ram Gati Choubey is a hearsay witness who was not

present at the place of occurrence. He has put her signature over the

inquest report and seizure memo. He has stated that the Investigating

Officer has not searched the house of the accused Raj Kumar Choubey in

his presence but he has stated that the Officer-in-Charge of Nagar Untari

PS was present in the house and examining the dead body of Nirmala

Kumari. He prepared inquest report in his presence over which he put his

signature. Witness Ram Charitar Chaubey also put his signature over the

same. He has proved both the signatures which have been marked Exts. 1

and 1/1. The Sub Inspector also seized one wooden slipper, one pair of

hawai slipper, one spectacle and a lungi from near the dead body and

prepared a seizure list over which he and Ram Charittar Chaubey put their

signatures. The two signatures have been marked Exts.1/2 and 1/3. The

Sub Inspector of Police also seized one bloodstained cover of Tosak and

bloodstained earth and prepared a seizure list in his presence. He has

proved his signature as well as signature of Ram Charittar Chaubey over

the seizure list which have been marked Exts. 1/4, and 1/5, respectively.

Though, he has denied that Sub-Inspector did not make any search of the

house of accused Raj Kumar Chaubey in his presence, but

he has proved his signature and the signature of Ram Charittar Choubey

over the search list which have been marked Ext. 1/6 and 1/7 respectively.
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54. In the cross-examination, he has said that the informant was not

present in the house. He further stated that there was no special mark on

the articles which were seized from near the dead body. The Sub Inspector

had seized the cover of Tosak from the cot which were kept south of the

chauki in the dhawa. The cover was stained with a drop of blood. From

the evidence of this witness, it would appear that the Sub Inspector had

seized some articles from near the dead body and the dead body was lying

inside the house of the informant.

55. PW4-Parma Singh and PW5-Ramdeo Singh are the constable

and they are formal witness.

56. PW6-Rajendra Kumar Choubey is a co-villager of the informant

who is also a formal witness.

57. PW7-Gopal Misra is a co-villager who has deposed that he had

seen the occurrence when he went to the informant's house to take bullock

cart. He has stated that he saw the occurrence. All the accused persons

were beaten the informant at his dhaba. He has further deposed that Raj

Kumar Choubey instigated and told Satyender Choubey to kill the

informant whereupon Satyender Choubey open fire from his pistol which

hit the daughter of informant. The daughter of the informant fell down. He

has deposed that after the occurrence there was stampede and all the

accused fled away from the place of occurrence. He also fled away from

there. He had identified the accused Satyender Choubey, Virendra

Choubey and Raj Kumar Choubey who were present in the dock.

58. During his cross-examination. He has deposed that he did not

recall the date and year of the occurrence. He has stated that he himself
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went to the police station at about 9-10 PM to give statement about the

occurrence. He has stated that he had not seen the bloodstained or any

wound on the body of the informant, his wife and his sons. He has stated

that he had not cared that any wound was there on the body of Raj Kumar

Choubey. He has stated that he heard the sound of firing of bullet. He has

stated that he had seen that Satyendra Choubey, Vinod Choubey and

Birendra Choubey had started assaulting Deo Kumar Choubey, his wife

and sons with lathi, knife and fists and slaps for about 10-15 minutes. He

has stated that he had seen the blood oozing from the middle of chest of

the deceased. He has denied that at the time of occurrence the fired took

place from the gun of Deo Kumar Choubey. He has denied the suggestion

that he had not seen the occurrence.

59. PW8-Ram Charitra Choubey is the co-villager and was also

tendered for cross-examination.

During cross-examination this witness has stated that the sub-

inspector of police had investigated the matter who came to the village.

He further stated that from the house of Deo Kumar Choubey one double

barrel gun was seized and at that time he was present with Kamlesh

Dubey.

60. PW9 Uday Shankar Choubey is a hearsay witness. He has stated

that on hearing that firing took place at the house of Deo Kumar Choubey,

he went there and he saw the dead body of Nirmala (deceased). He has

identified the accused persons who were present at the dock at the time of

his adducing evidence.
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During cross-examination this witness has stated that on hearing

the sound of firing he went to the house of Deo Kumar Choubey. He has

denied the suggestion that the firing took place from the gun of Deo Kumar

Choubey.

61. PW10-Dr. Indreshwar Tiwari has deposed that he conducted

post-mortem upon the body of deceased and has found the following

ante-mortem injuries:

(i) Lacerated oval wound 1 ½" x 1" x brain cavity deep on the left
mastoid region of scalp with inverted margin blackening and
shooting of the skin around the wound was found. Brain matter
coming out of the wound.

(ii) Defused swelling of the upper part of the right side of the neck
behind right ear with multiple fracture of the underlying bones.

Blood coming out through the right ear.

On Dissection, skull bones and base of skull found fracture into
multiple pieces except the frontal and parietal bone.

Brain matter extensively lacerated. Blood and blood clot found
in the cavity. One cardboard piece, one plastic piece and 44
metallic pieces recovered from the brain matter and the cavity.

According to the doctor, weapon used was fire arms might be
country made pistol, in which the 12-bre cartridge was used.

The cause of death was shock and hemorrhage due to the injury
to the vital organ within 12 to 36 hours of the examination.

In the cross-examination, this witness has stated that cartridge

used in gun and revolver are different and the materials recovered from the

wound are constituents of 12-Bore cartridge which is usually used in gun

firing. These cartridges are not used in revolver or pistol.
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62. PW13-the doctor who has examined the injured witness-Deo

Kumar Chaubey (informant) on 21.2.91 at 6 PM at Referral Hospital,

Nagar Untari has found the following injuries on his person:

(i) one abrasion 1" x ½" / subcutaneous thickness on the lower
part of the right knee joint.

(ii) Abrasion ½ " x ½" x subcutaneous thickness on the lower
part of the left knee joint.

(iii) Bruise 1" x 1 " x on the lower part of the left nipple.

iv) Bruise 1" x 1" x on the dorsal aspect of right foot.

All the injuries were simple in nature caused by hard and blunt
substance such as lathi within six hours of the examination.

63. This doctor has also examined the accused-Raj Kumar Chaubey

at 4 PM, on the basis of the requisition sent by the officer-in-charge, Nagar

Untari PS which have been marked as Ext8 and A/1 respectively and has

found the following injuries on his person:

(a) Lacerated wound 3" x ½" x ¼" on the right side of occipital
area.

(b) Lacerated wound ½" x ¼" x ¼" on the left cheek.

(c) Abrasion 1" x ½" x subcutaneous thickness on the left elbow
joint.

(d) Abrasion 1" x ½" x subcutaneous thickness on the left ankle
joint.

(e) Two bruises 3" x 1" and 3" x 1" on the upper part of back.

All these injuries were simple in nature caused by hard and blunt
substance such as lathi within six hours of the examination.

64. PW11-Havildar Mauleshwar Singh was posted at Nagar Untari

PS and he has produced the seized articles from the place of occurrence to

the Court which are (i) wooden slippers, (ii) one pair of hawai slippers,
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(iii) one lungi of light pink colour, (iv) empty cover of toshak, and (v)

bloodstained earth which have been exhibited as X, X/1, X/2, X/3 and

X/4, respectively.

During cross-examination this witness has stated that at the time

of occurrence he was not posted at Nagar Untari PS and he brought a list

of seizure list which was given the officer-in-charge of the said PS.

65. PW12-Deo Kumar Choubey is the informant of the case. He has

deposed that on 21.2.91 at 12 O'clock Noon he was going to Sonpurwa to

attend a Yagya which was being performed there. However, when he,

reached there east of his house near his wheat field appertaining to plot

no.1, he saw Binod Kumar Chaubey and Birendra Kumar Chaubey armed

with lathi setting his wheat crops grazed through their bullock. He

objected to it, but they did not listen and extended threat to assault him. In

the meantime, his accused Raj Kumar Chaubey also came out of their

house and instigated accused Binod Chaubey and Birendra Chaubey to

assault the informant. In order to save his life, the informant ran away and

took shelter in the house of Kameshwar in his village. However, all the

three accused namely Raj Kumar Chaubey, Birendra Chaubey and Binod

Chaubey also reached there They were no male member in the house of

Kameshwar Chaubey. However, Uma Devi wife of Kameshwar Chaubey,

tried to pacify the matter and requested the accused persons to go away.

In the meantime, Uday Shankar Chaubey also came there and requested

them to go away. Thereafter, the afore-mentioned accused persons

returned back to their house. After two hours, the informant came out of

the house of Kameshwar Chaubey and returned to his house. It was about

2.30 P.M.to 3 P.M. when he was sitting on a cot in the outer dhawa of his
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house, when accused Raj Kumar Chaubey, Binod Chaubey and Birendra

Chaubey armed with lathi and Satyendra Chaubey armed with a country

made pistol entered into the house through the main entrance door. On

seeing them, the informant ran to his angan However, all the four accused

followed him. Accused Raj Kumar Chaubey caught his both hands

whereas accused Binod Chaubey and Satyendra Chaubey began assaulting

him with fists and slaps. Accused Raj Kumar Chaubey gave order to other

accused to enter into the northern rooms of the house and to find out the

valuables. Thereupon, accused Birendra Chaubey went inside the room

and brought out Rs.5000/- which was kept in a tin box. Thereafter, all the

four accused brought him to the dhawa where he was earlier sitting. They

were also assaulting him with lathi, but the force of lathi blow was being

reduced as the same was obstructed by the roof. The informant was

brought on the main entrance dhawa where accused Raj Kumar gave order

to kill the informant with pistol. Thereupon, accused Satyendra Chaubey

aimed his country made pistol at the chest of the informant. However, the

informant turned and deceased Nirmala who was standing by the side of

the informant with her both hands around the waist of the informant, came

in front of the accused Satyendra Chaubey and the fire hit Nirmala Kumari

near her left year. She fell down and died. The accused persons, thereafter,

fled away. However, while fleeing away, accused Raj Kumar Chaubey left

his one wooden slipper of left leg(material Ext.I). He also left his

spectacle. Accused Satyendra Chaubey left his pink colour lungi (Ext.II).

Accused Binod Chaubey left his hawai slippers (Ext.III) The witness has

also proved cover of Tosak which was seized by the I.O. and the same has

been marked Ext. IV. The informant has asserted that the occurrence was
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witnessed by his son Sumant Kumar Chaubey (P.W.1), Rajendra Kumar

Chaubey (P.W.6), his wife Shardha Devi (P.W.2) and Gopal Mishra

(P.W.7). He further deposed that the Sub Inspector of Police came and

recorded his fardbeyan. He has proved his signature on the fardbeyan

marked Ext.1/8. The I.O. had recorded his further statement also. He has

stated that he had sustained injuries on his person also and he was treated

at Nagar Untari Referal Hospital. The witness further stated that the size

of barrel of the pistol was of 12-bore.

66. In the cross-examination, P.W.12 has stated that he had disclosed

in the fardbeyan and in his further statement that the weapon used was a

pistol. He has stated in his cross-examination that the material exhibits

were seized by the Investigating Officer in his presence. However, he did

not remember as to whether the same were sealed or not. He has denied

that the material exhibits seized from the place of occurrence did not

belong to the accused persons.

67. P.W.12 the informant had also described the place of occurrence

and his house in his cross-examination. In para 23 of the cross-

examination, he has stated that main entrance door is fitted with choukhat

door and planks which opens towards north of his house. In the western

side of the house there is a long dhawa running from north to south. This

dhawa is divided into two parts by a wall living door space. In the southern

portion of this dhawa, there is a door which opens towards west of the

house. This is fitted with Choukhat door plank. In the southern dhawa,

there is also a door which opens towards east in the inner dhawa of the

house. One goes in the angan through this inner dhawa. In para 24 of the

cross-examination, this witness has stated that the main entrance door
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which opens towards north of the house is fitted in the northern portion of

the western dhawa. However, at the main entrance door, there is a wall

towards east separating the said dhawa which runs towards east to west

living a door space. Near the main entrance door, the width of the dhawa,

from east to west is 9 to 10 ft. The length of the northern portion of the

western dhawa from north to south is 20 ft. There is another entrance door

towards north of the house which opens in the dhawa which runs east to

west towards north of the house. In para 25, this witness has said that there

are two rooms towards north of the angan. There is also a dhawa towards

east of the angan. From the eastern side of the northern room, one can go

in the northern dhawa of the house which runs east to west. In the south

of the angan also, there is a dhawa and, thereafter, there are two rooms. In

between the two rooms, there is a stair case for going up higher. He has

thereafter, given the size of the angan. The ceiling height of the western

and éastern dhawa is 8 ft. In para 29, the informant has said that a chauki

was kept in the main entrance dhawa at a distance of 7 ft. from the door.

Adjacent to the chauki, a cot was also kept. A tosak with cover was kept

on the said cot. This witness has further stated that the house of the accused

is adjacent east of the house and the wheat field, in which the occurrence

of grazing had taken place, was at a distance of 50 ft. from the house of

the accused. In para-41 he has claimed that he was sitting in the southern

portion of the western dhawa when the accused persons entered into his

house. In para 51 of the cross-examination also, the informant had

supported the occurrence. He has asserted that when incident of shooting

took place he was facing towards south and the accused persons were

facing towards north. Accused Satyendra Chaubey pressed his pistol at
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him. At that time, his daughter was standing left to him and she had put

her arms on the west waist of her father.

68. PW14-Biswas Toppo is a constable who identified the signature

of the officer-in-charge of Nagar Untari PS on Sanha NO.338 and 342

both dated 21.2.91 which have been exhibited 6 and 6/1 respectively.

During cross-examination, this witness has stated that the

aforesaid sanha was not recorded in his presence. He has denied that he

has ever worked with Ishwari Dayal, who was the then officer-in-charge

of Nagar Untari PS.

69. PW15-Ishwari Dayal is the Investigating Officer. He has

deposed that on 21.2.91 at 6.05 P.M. he heard rumour that an occurrence

took place at village Sulsuliya in which a girl was shot dead. He made

station diary entry no.338 dated 21.2.91 (Ext.6) and left the police station

along with the Inspector of Police, Bhawnathpur, and Havaldar Ramadhar

Singh. At 6.30 P.M. he reached village Sulsuliya and recorded the

statement of informant Dev Kumar Chaubey. Informant put his signature

over the fardbeyan. Two witnesses namely Jogendra Chaubey and Uday

Shankar Chaubey also put their signatures on the fardbeyan (Ext.3). He,

thereafter, prepared inquest report of deceased Nirmala Kumari in

presence of the aforesaid two witnesses. He has proved carbon copy of

inquest report marked Ext.2. He took up the investigation himself and

recorded the further statement of the informant and issued requisition for

Injury report (Ext.8) He inspected the place of occurrence which is the

north facing Khaprail house of informant. The main entrance door of the

house faces towards north and opens inside of the dhawa of the house. The

dead body of Nirmala Kumari was found lying at a distance of 7 ft. South
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from the main entrance door. Her head was towards east near the door

which leads to the eastern dhawa and her legs were towards south. The

dead body was in a pool of blood. Towards south of the dead body, there

was a wooden chauki and adjacent to the chauki, there was a cot which

was spread east to west. To the west of the dead body, the 1.0. found one

wooden slipper, one spectacle, one cotton lungi of pink colour and one

pair sky Hawai slipper. He also found mark of blood on the cover of Tosak

which was kept on the cot. He further stated that adjacent south of this

main entrance dhawa, there was another dhawa. However, there is a door

space between the two dhawa. In the southern portion of this dhawa, a

door opens towards west and another door opens towards east which leads

to inner dhawa. There is an angan adjacent east of the inner dhawa. The

Investigating Officer has further given description of the angan which is

surrounded by the dhawa from west side, east side and south side. Towards

north of the angan, there are two rooms facing south. The Investigating

Officer found sign of fresh grain in the wheat field of the informant. Some

plants were Found uprooted. Mark of hoofs of cattle heads were also found

in the field. The house of Kameshwar Chaubey in situated at a distance of

about 300 to 400 yards north west from the house of the informant. The

Investigating Officer has, therefore, proved the place of occurrence and

according to him also the incident of shooting took place in the main

entrance dhawa of the informant. The Investigating Officer has proved the

genesis of occurrence in as much as he found sign of grazing of wheat

crop of the informant.

70. The Investigating Officer seized the wooden slipper, spectacle,

lungi and pair of hawai slippers in presence of the witnesses. He has
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proved the carbon copy of seizure list which has been marked Ext.9. The

Investigating Officer also seized blood stained earth from the place of

occurrence and the cover of tosak which was stained with blood in

presence of witnesses. Investigating Officer further recorded the statement

of witnesses namely Sharda Devi and Rajendra Chaubey and sent the dead

body for post-mortem. He also recorded the statements of other witnesses

also and returned to the police station where formal F.I.R. (Ext.2) was

drawn. On 22.2.91 one black colour lathi was produced before him by

P.W.2 Sharda Devi which was seized in presence of witnesses. He has

proved the seizure list marked Ext. 11. The I.O. also identified the wooden

slipper, lungi, pair of hawai slipper and cover of tosak in the Court which

have been marked Exts. I to IV. Bloodstained earth which he had seized

from the place of occurrence has been marked Ext. V. He had made entries

about these seizure in the station diary entry no. 342 dated 21.2.91

(Ext.6/1). The Investigating Officer, thereafter, obtained post-mortem

report and injury report of the informant and submitted charge sheet.

71. During cross-examination at para-20 he has admitted that he had

seen accused Raj Kumar Chaubey at Referal Hospital, Nagar Untari on

21.2.91 in injured condition and he had also issued a requisition for his

injuries (Ext.A/1). In para 21, the Investigating Officer stated that he

recorded the fardbeyan of accused Raj Kumar Chaubey at Referal Hospital

on 21.2.91 at 11 PM and on the basis of which he registered a case against

the informant Deo Kumar Chaubey and others. The Investigating Officer

has, however, denied that he had met accused Raj Kumar Chaubey at

Referal Hospital on 21.2.91 before 4 PM and had issued requisition for his

medical examination. He also denied that he had learnt about the
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occurrence through Raj Kumar Chaubey at that time. The I.O has further

admitted that he had obtained injury report of Raj Kumar Chaubey from

the doctor and the doctor has mentioned the time of examination as 4 PM.

The Investigating Officer has, however, denied that he had learnt about

the occurrence at Nagar Untari itself through accused Raj Kumar

Chaubey, but he did not record the statement of accused Raj Kumar

Chaubey. However, the Investigating Officer has admitted that he

registered Nagar Untari P.S. Case No.25/91
u/s 341
,
/
I.P.C. and 27

Arms Act
on the basis of the statement of accused Raj Kumar Chaubey.

He has denied that he recorded the fardbeyan of this case after a long

delay. He has admitted that he had not sealed the articles which he had

seized from the place of occurrence. However, he has also admitted that

he did not take trial of the articles seized from the place of occurrence

from the accused persons.

72. The Investigating Officer has admitted that he recorded the

statement of witness Sumant Kumar Chaubey and witness Gopal Mishra

on 13.3.91 at the police station. He further admitted that he seized the

licencee gun of the informant on 22.2.91 in connection with the counter

case and sent the same to Sargeant Major, Daltonganj for examination. He

also received the report of the Sargeant Major on 9.3.91.

73. The defence has, also examined five witnesses.

74. DW1 Ashok Singh has proved the fardbeyan and formal FIR of

the counter-case which have been proved as Ext. B and C respectively.

75. DW2-Raj Kumar Prasad is an advocate's clerk of Garhwa Court.

He had drafted the protest complaint petition at the instance of accused
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Raj Kumar Chaubey and gave the same to the typist. After being typed, he

compared the same with the draft. Accused-Raj Kumar Chaubey put his

signature on the said complaint petition in his presence. He has proved the

signature of accused-Raj Kumar Chaubey on the same which has been

marked Ext.D.

76. DW3-Moti Prasad is a private typist of Garhwa Court who had

typed the protest complaint petition. He has proved the entire protest

complaint petition which has been marked Ext-E.

77. DW4-Rajdeo Rai is the then Sergeant Major, Police Line,

Daltonganj. He had examined the gun of the informant from both barrel.

He has proved his report which has been marked Ext-F. He has deposed

that he had examined one regular D.B.B.L. gun which was seized in

connection with Nagar Untari mad P.S.Case No.25/91 and found that

firing was done from both barrels, of the gun in the recent past. He has

proved his report as Ext.F. He has asserted that he is a ballistic expert

though he did not have any diploma or degree in that science however he

has obtained a certificate in this regard from the Department. He has

however, also admitted that only chemical expert could say as to in how

many days smell evaporates from the gun. He had examined the gun on

9.3.91 i.e. after 16 days of the occurrence. However, he has also stated that

the gun might have been fired about a week or ten days ago. He has,

however, admitted that the gun was not sent to chemical expert for

chemical examination.

78. DW5-Havaldar Awadhes Kumar Singh is a formal witness. He

has proved the carbon copy of requisition (Ext-G) sent by PW15 to the
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Sergeant Major. Police Line, Daltonganj to examine the gun which was

seized in connection with Nagar Untarii PS Case No.25/91 and carbon

copy of a petition (Ext-H) submitted by PW15 before the Court of the

learned ACJM, Garhwa, seeking a direction to Sergeant Major, Police

Line, Daltonganj to examine the gun.

79. In the backdrop of the aforesaid settled proposition of law and

after discussion of testimony of prosecution witnesses this Court in the

instant appeal is to consider following issues: -

(i)Whether the material as has come in course of trial is

sufficient to attract the ingredients of offence committed under

Section 302
/
and
/
of the Indian Penal Code against the

appellants? or

(ii) Whether the appellants are entitled for acquittal in absence

of cogent evidences?

80. Since, all the aforesaid issues are inextricably interlinked,

therefore, the same are being discussed and decided hereinbelow together.

81. The learned senior counsel for the appellant has contended that

the doctor who has been examined as PW10, as also the Investigating

Officer has not supported the prosecution story as P.W.10 doctor has

specifically stated that the material recovered from the wounds of

deceased were constituent of 12 bore cartridges which is used in gun firing

and they are not used in revolver or pistols. Further the bullet has said to

be fired from the country made pistol but there is no reference of recovery

of any country made pistol in the seizure memo rather one licensee gun

has been recovered. It has further been contended that the pellet which
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has been found from the body of the deceased has not been fired from the

country made pistol thus, the entire prosecution version as recorded in the

FIR wherein it has been reported that the pellet has been fired from the

country made pistol itself vitiate the entire prosecution version.

82. The learned senior counsel for the appellant has canvassed that

the prosecution has failed to explain the injuries on the appellant namely

Raj Kumar Choubey which casts grave doubt on the prosecution story

specially when the said appellant was examined on police requisition at 4

P.M on 21.02.1991. The learned senior counsel has further emphasized

that if entire evidence will be taken into consideration it will be apparent

that none of the prosecution witness has stated about the premeditation

among the accused/appellants and further no evidence has been brought

on record in order to establish the common intention among the accused

appellants, therefore the application of
Section 34
IPC against all the

appellants amounts miscarriage of justice.

83. At this juncture it would be purposeful to discuss the relevant

part of the testimony of prosecution witnesses as well as FIR in order to

answer the issues as referred in the preceding paragraphs.

84. From perusal of the FIR, it is evident that on the trivial issue of

grazing of wheat crops of informant by the buffalo of accused/appellants

alleged occurrence was happened. As per the fardbeyan of the informant

Deo Kumar Chaubey, the appellant Rajkumar Chaubey ((since dead) who

is elder brother of the informant has to his house and instigated his two

sons to assault the informant. The Informant, thereafter, fled away and

took shelter in the house of Kameshwar Chaubey, a co-villager.

Thereafter, the aforesaid three accused persons returned back to their
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house. After two hours, the informant came out of the house of

Kameshwar Chaubey and went to his house.

85. It has further been alleged that after 10 to 15 minutes when he

was sitting on a khatiya (cot), in the main entrance of his house, at about

2.30 to 3 P.M., all the four accused, namely, Raj Kumar Chaubey and his

three sons namely Binod Chaubey, Satyendra Chaubey and Birendra

Chaubey entered into his house through the main door. Accused Satyendra

Chaubey was armed with a country made pistol whereas remaining three

accused were armed with lathi. Seeing the accused persons, the informant

went in the Angan of the house but all the four accused also followed him

and came in the Angan whereas accused Raj Kumar Chaubey caught him

and accused Satyendra Kumar Chaubey and Binod Chaubey began

assaulting him with fists and slaps. and thereafter the accused persons

dragged him and brought him in the main entrance dhaba of the house

where accused Birendra Chaubey and Binod Chaudhary tried to assault

him with lathi, and in the meantime, accused Raj Kumar Chaubey gave

order to kill the informant with the said country made pistol. Thereupon,

Satyendra Chaubey opened fire from his country made revolver with

intent to kill the informant. But the fire missed the target and hit Nirmala

Kumari (daughter of the deceased) near her left ear due to this she fell

down and died instantly.

86. Thus, from the recital of the fardbeyan it is evident that the

alleged occurrence of murder of the deceased daughter was caused by

appellant by firing from country made pistol.

87. At this juncture it will be purposeful to reiterate the testimony of

the doctor who had conducted post-mortem on the dead body of the
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deceased, wherein he has opined that weapon used was fire arms may be

country made pistol, in which the 12-bore cartridge was used. But at the

same time in his cross-examination, he had stated that Cartridges used in

Gun and Revolver are different. He had further stated that the material

recovered from the wound of the deceased while conducting Postmortem

examination are the constituents of 12 bore cartridges usually used in gun

firing and these constituents are not found in the cartridges used in

Revolver or Pistol.

88. At this juncture it needs to refer herein that this Court is

conscious with the settled legal position that where there is a contradiction

between medical evidence and ocular evidence, the ocular testimony of a

witness has greater evidentiary value vis-à-vis medical evidence, but at

the same time it is equally settled position that when medical evidence

makes the ocular testimony improbable, then it becomes a relevant factor

in the process of the evaluation of evidence and when the medical

evidence goes so far that it completely rules out all possibility of the ocular

evidence being true, the ocular evidence may be disbelieved. Reference in

this regard may be made to the judgment rendered by the Hon'ble Apex

Court in the case of
Bhajan Singh v. State of Haryana
, (2011) 7 SCC

421 , the relevant paragraph of the aforesaid judgment is being quoted as

under:

38. Thus, the position of law in such a case of contradiction between
medical and ocular evidence can be crystallised to the effect that
though the ocular testimony of a witness has greater evidentiary value
vis-à-vis medical evidence, when medical evidence makes the ocular
testimony improbable, that becomes a relevant factor in the process
of the evaluation of evidence. However, where the medical evidence
goes so far that it completely rules out all possibility of the ocular
evidence being true, the ocular evidence may be disbelieved.
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89. The aforesaid same view has been reiterated by the Hon'ble

Apex Court in the case of
CBI v. Mohd. Parvez Abdul Kayuum
, (2019)

12 SCC 1 wherein it has been held by the Hon'ble Apex Court which

reads as under:

57. ----It is not a case where medical evidence completely
improbabilises the ocular evidence; only
in that case
the ocular
evidence has to be discarded, not otherwise.

Reliance has been placed
on behalf of the accused on
Abdul Sayeed v. State of M.P. [Abdul
Sayeed
v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262]
thus: (SCC p. 274, para 39)
"39. Thus, the position of law in cases where there is a contradiction
between medical evidence and ocular evidence can be crystallised to
the effect that though the ocular testimony of a witness has greater
evidentiary value vis-à-vis medical evidence, when medical evidence
makes the ocular testimony improbable, that becomes a relevant factor
in the process of the evaluation of evidence. However, where the
medical evidence goes so far that it completely rules out all possibility
of the ocular evidence being true, the ocular evidence may be
disbelieved."

90. In the instant case, it has come on record that there is no recovery

of any country made pistol or revolver from the place of occurrence or

from conscious possession of the appellants herein. Further herein the

medical evidence completely rules out all possibility of the ocular

evidence being true as such the ocular evidence may be disbelieved.

91. Thus, from the aforesaid it is evident that the aforesaid factum

of firing from the country made pistol has not been proved by the

prosecution against the present appellants beyond reasonable doubt.

92. Further, since the learned trial court by taking aid of the
Section
of the IPC has convicted the present appellants for the alleged offence,

therefore at this juncture it would be apt to discuss the ingredients of

Section 34
of the IPC.
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93. It needs to refer herein that under the provisions of
Section 34

the essence of the liability is to be found in the existence of a common

intention animating the accused leading to the doing of a criminal act in

furtherance of such intention. As a result of the application of principles

enunciated in
Section 34
, when an accused is convicted under Section

302 read with
Section 34
, in law it means that the accused is liable for

the act which caused death of the deceased in the same manner as if it

was done by him alone. The provision is intended to meet a case in

which it may be difficult to distinguish between acts of individual

members of a party who act in furtherance of the common intention of

all or to prove exactly what part was taken by each of them.

94. Thus, from the aforesaid settled position of law it is evident that

Section 34
has been enacted on the principle of joint liability in the doing

of a criminal act. The section is only a rule of evidence and does not

create a substantive offence. The distinctive feature of the section is the

element of participation in action. The liability of one person for an

offence committed by another in the course of criminal act perpetrated

by several persons arises under
Section 34
if such criminal act is done

in furtherance of a common intention of the persons who join in

committing the crime.

95. In order to bring home the charge of common intention, the

prosecution has to establish by evidence, whether direct or

circumstantial, that there was plan or meeting of minds of all the accused

persons to commit the offence for which they are charged with the aid

of
Section 34
, be it prearranged or on the spur of the moment; but it must

necessarily be before the commission of the crime.
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96. The true contents of the section are that if two or more persons

intentionally do an act jointly, the position in law is just the same as if

each of them has done it individually by himself. The existence of a

common intention amongst the participants in a crime is the essential

element for application of this section. It is not necessary that the acts of

the several persons charged with commission of an offence jointly must

be the same or identically similar. The acts may be different in character,

but must have been actuated by one and the same common intention in

order to attract the provision.

97. Further, the burden lies on the prosecution to prove that actual

participation of more than one person for commission of criminal act

was done in furtherance of common intention of all at a prior concert.

However, it is not required for the prosecution to establish that there was

a prior conspiracy or premeditation; common intention can be found in

the course of occurrence.

98. To apply
Section 34
apart from the fact that there should be two

or more accused, two factors must be established: (i) common intention,

and (ii) participation of the accused in the commission of an offence. If

common intention is proved but no overt act is attributed to the

individual accused,
Section 34
will be attracted as essentially it involves

vicarious liability. But if participation of the accused in the crime is

proved and common intention is absent,
Section 34
cannot be invoked

reference in this regard may be taken from the judgment rendered by the

Hon'ble Apex Court in the case of
Jai Bhagwan v. State of

Haryana
(1999) 3 SCC 102.
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99. As held by the Constitution Bench of the Hon'ble Apex Court

in
Mohan Singh v. State of Punjab
AIR 1963 SC 174, common

intention denotes action in concert, and a prior meeting of minds--the

acts may be different, and may vary in their character, but they are all

actuated by the same common intention. However, prior concert in the

sense of a distinct previous plan is not necessary to be proved. The

common intention to bring about a particular result may well develop on

the spot as between a number of persons. Thus, the question as to

whether there is any common intention or not depends upon the

inference to be drawn from the proven facts and circumstances of each

case. The totality of the circumstances must be taken into consideration

in arriving at the conclusion whether the accused persons had the

common intention to commit the offence with which they could be

convicted.

100. In the aforesaid backdrop of the settled position of law that, this

Court has revisited the entire testimony including the material available

on record wherefrom it is evident that none of the witnesses had stated

in their examination-in-chief that the present appellant having common

intention to kill the deceased. Therefore, in the aforesaid settled position

of law as discussed in preceding paragraph this Court is of the view that

the presents appellants having no common intention or premeditation of

mind before the commission of alleged crime.

101. Further it is evident from the record that the persons of both sides

i.e. informant as well as appellant Raj Kumar Choubey (since dead) have

sustained injuries and both have been medically examined on the
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requisition of the police and their injuries report have marked as

annexure. From the aforesaid factual aspect, inference may be

withdrawn that it is case of free fight on the trivial issue i.e. grazing of

wheat crop of the informant by the animal of the appellants and it is

settled position of law that in the case of free fight, the ingredients of

Section 34
of the IPC have no application.

102. Since this Court has come with the finding in the preceding

paragraph that the factum of firing by the appellant namely Satyendra

Choubey by the alleged country made pistol has not been established

beyond reasonable doubt, therefore it is of the considered view of this

Court that appellants cannot be convicted for the offence under
Section
/
IPC.

103. So far as the conviction under
section 307
/
of the IPC is

concerned, it needs to refer herein that the persons of both sides i.e.

informant as well as appellant Raj Kumar Choubey (since dead) have

sustained injuries and both have been medically examined on the

requisition of the police and their injuries report have been marked as

annexure before the learned trial court.

104. At this juncture it would be apt to referred herein the
Section 307

IPC which reads as under:

"307. Attempt to murder.--Whoever does any act with such intention
or knowledge, and under such circumstances that, if he by that act
caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; and if hurt is caused to any person
by such act, the offender shall be liable either to imprisonment for life,
or to such punishment as is hereinbefore mentioned.
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Attempts by life convicts. --When any person offending under this
section is under sentence of imprisonment for life, he may, if hurt is
caused, be punished with death.

105. The first part of Section 307 refers to "an act with such intention

or knowledge, and under such circumstances that, if he by that act caused

death, he would be guilty of murder". The second part of Section 307,

which carries a heavier punishment, refers to "hurt" caused in pursuance

of such an "act".

106.
In
State of Maharashtra v. Balram Bama Patil [State of

Maharashtra
v. Balram Bama Patil, (1983) 2 SCC 28, the Hon'ble Apex

Court has observed that it is not necessary that a bodily injury sufficient

under normal circumstances to cause death should have been inflicted, for

ready reference the relevant paragraph is being quoted as under:

"9. ... To justify a conviction under this section it is not essential that
bodily injury capable of causing death should have been inflicted.
Although the nature of injury actually caused may often give
considerable assistance in coming to a finding as to the intention of the
accused, such intention may also be deduced from other circumstances,
and may even, in some cases, be ascertained without any reference at
all to actual wounds. The section makes a distinction between an act of
the accused and its result, if any. Such an act may not be attended by
any result so far as the person assaulted is concerned, but still there
may be cases in which the culprit would be liable under this section. It
is not necessary that the injury actually caused to the victim of the
assault should be sufficient under ordinary circumstances to cause the
death of the person assaulted. What the Court has to see is whether the
act, irrespective of its result, was done with the intention or knowledge
and under circumstances mentioned in this section. An attempt in order
to be criminal need not be the penultimate act. It is sufficient in law, if
there is present an intent coupled with some overt act in execution
thereof."

(emphasis supplied)
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107.
In
State of M.P. v. Saleem
, (2005) 5 SCC 554, the Hon'ble Apex

Court has held which reads as under:

"13. It is sufficient to justify a conviction under Section 307 if there is
present an intent coupled with some overt act in execution thereof. It is
not essential that bodily injury capable of causing death should have
been inflicted. The section makes a distinction between the act of the
accused and its result, if any. The court has to see whether the act,
irrespective of its result, was done with the intention or knowledge and
under circumstances mentioned in the section. Therefore, an accused
charged under
Section 307
IPC cannot be acquitted merely because the
injuries inflicted on the victim were in the nature of a simple hurt."

108.
In
Jage Ram v. State of Haryana
(2015) 11 SCC 366, the

Hon'ble Supreme Court has held that to establish the commission of an

offence under Section 307, it is not essential that a fatal injury capable of

causing death should have been inflicted, for ready reference the relevant

paragraph is being quoted as under:

"12. For the purpose of conviction under
Section 307
IPC, the
prosecution has to establish (i) the intention to commit murder; and (ii)
the act done by the accused. The burden is on the prosecution that the
accused had attempted to commit the murder of the prosecution witness.
Whether the accused person intended to commit murder of another
person would depend upon the facts and circumstances of each case.
To justify a conviction under
Section 307
IPC, it is not essential that
fatal injury capable of causing death should have been caused.
Although the nature of injury actually caused may be of assistance in
coming to a finding as to the intention of the accused, such intention
may also be adduced from other circumstances. The intention of the
accused is to be gathered from the circumstances like the nature of the
weapon used, words used by the accused at the time of the incident,
motive of the accused, parts of the body where the injury was caused
and the nature of injury and severity of the blows given, etc."

109. It is evident from the aforesaid settled proposition of law that

proof of grievous or life-threatening hurt is not a sine qua non for the

offence under Section 307 of the Penal Code and the intention of the
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accused can be ascertained from the actual injury, if any, as well as from

surrounding circumstances. Among other things, the nature of the weapon

used and the severity of the blows inflicted can be considered to infer

intent.

110. Thus, it is apparent that whoever does any act, with the intention

or knowledge, which may cause death and in furtherance to the said

intention and knowledge, he was doing an act towards it. However, it is

required to be seen by the evidence brought on record by the prosecution

whether the ingredients to prove, the case of prosecution beyond

reasonable doubt, the charge under
Sections 307
IPC have been

established.

111. The essential difference between the offence punishable under

Section 307
IPC and
Section 302
IPC is that the offence under
section 307

IPC is not culpable homicide; the victim finally survives. What is required

by the prosecution to establish is that the accused had necessary intention

or knowledge that if successfully effected the alleged act would have

caused death.
In "
State of Maharashtra v. Kashirao
" reported in (2003)

10 SCC 434, the Hon'ble Apex Court has held as under;

"20. ....... "The essential ingredients required to be proved in the case
of an offence under section 307 are:

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by, or in consequence
of the act of the accused; and

(iii) that such act was done with the intention of causing death; or that
it was done with the intention of causing such bodily injury as: (a) the
accused knew to be likely to cause death; or (b) was sufficient in the
ordinary course of nature to cause death, or that the accused attempted
to cause death by doing an act known to him to be so imminently
dangerous that it must in all probability cause (a) death, or (b) such
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bodily injury as is likely to cause death, the accused having no excuse
for incurring the risk of causing such death or injury."

112. In the backdrop of the aforesaid settled proposition of law, now

we are adverting to the facts of the case in hand in order to find out

whether the alleged acts of the appellants come under the purview of

attempt to murder or not.

113. In the aforesaid context it would be purposeful to reiterate the

testimony of the doctor (PW13) who had examined the injured

informant which has been referred as under:

(i) one abrasion 1" x ½" / subcutaneous thickness on the lower
part of the right knee joint.

(ii) Abrasion ½ " x ½" x subcutaneous thickness on the lower part
of the left knee joint.

(iii) Bruise 1" x 1 " x on the lower part of the left nipple.

iv) Bruise 1" x 1" x on the dorsal aspect of right foot.

114. This witness has categorically opined that all the injuries were

simple in nature caused by hard and blunt substance such as lathi. Thus

from the aforesaid it is evident that injuries which was caused by the

appellants upon the injured informant was simple in nature and caused by

the lathi, therefore it can be safely inferred that in the alleged commission

of crime the requisite ingredients of Section 307 as discussed hereinabove

is not available as such the conviction of the present appellants under

section 307
of IPC is also not sustainable herein.

115. However, it has come one record that the appellants namely

Vinod Kumar Choubey and Virendra Kumar Choubey having lathi at the

time of alleged commission of crime and all the prosecution witnesses had

specifically stated that assault by lathi was made by the aforesaid son of
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the Raj Kumar Choubey. Thus, the aforesaid statement of the prosecution

witnesses particularly informant on this point i.e. assault made with lathi

by the aforesaid appellants Vinod Kumar Choubey and Virendra Kumar

Choubey upon him, has fully corroborated by the testimony of P.W.13 i.e.

Doctor who had examined the injured informant.

116. On the basis of the aforesaid discussion, it is considered view of

this Court that appellants namely Vinod Kumar Choubey and Virendra

Kumar Choubey has committed the offence under
section 321
of the IPC

punishable under
Section 323
of the IPC.

117. The present appellants have been convicted under
Section 452

and
IPC by the learned trial Court. In the aforesaid context it requires

to refer herein the
Section 452
and
IPC, which has been quoted as

under:

"452.Whoever commits house-trespass, having made
preparation for causing hurt to any person or for assaulting any
person, or for wrongfully restraining any person, or for putting
and person in fear of hurt, or of assault, or of wrongful restraint,
shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to
fine.

341. Whoever wrongfully restrains any person shall be punished
with simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred rupees, or
with both."

118. Thus from the perusal of the aforesaid sections it is evident that

Whoever commits house-trespass, having made preparation for causing

hurt to any person or for assaulting any person, or for wrongfully

restraining any person, or for putting and person in fear of hurt, or of

assault, or of wrongful restraint shall be punished with imprisonment of

either description for a term which may extend to seven years.
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119. From perusal of the entire evidence on record it is the evident

that it the case of free fight between the close cognate and for same

transaction case and counter case was instituted. Further none of witnesses

has stated that they were wrongfully restrain by the present appellants,

therefore it is considered view of this Court the conviction of the present

appellants under the
Section 452
of the IPC is not sustainable herein.

120. Further it has come on record that there is no recovery of the

alleged country made pistol which has been alleged to be used in the said

offence and in the preceding paragraph this Court has categorically held

that the use of said country made pistol in alleged commission of crime is

doubtful, as such it is considered view of this Court that the conviction of

the present appellants under
Section 27
Arms Act is also not sustainable

herein.

Criminal appeal (DB) No. 114 of 2013 and Criminal appeal (SJ) No.

483 of 2013.

121. As referred hereinabove the aforesaid appeals have been

preferred against the conviction dated 13.02.2013 and the order of

sentence dated 19.02.2013 passed by the learned Addl. Sessions Judge-1st,

Garhwa in S.T. No. 32 of 1999 whereby and whereunder the appellants,

above-named, have been convicted under
sections 323
IPC. The convict-

appellant, namely, Deo Kumar Chaubey in Criminal Appeal (DB) No. 114

of 2013 has also been convicted under
section 304(1)
IPC.

122. While convicting the appellants of the Cr. Appeal (SJ) No. 483

of 2013, the learned trial Court has opined that since the appellants,

namely, Sumant Kumar Chaubey and Rajendra Kumar Chaubey are first
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offenders as not previous conviction has been proved on record against

them, as such, they have been granted benefit of the
Probation of

Offenders Act
and they were directed to be released on furnishing a

probation bond of Rs.5000/- with two sureties which will be for

maintaining good conduct for two years.

123. While sentencing the sole appellant of the Cr. Appeal (DB) No.

114 of 2013, namely, Deo Kumar Chaubey the learned trial Court has

awarded sentence to undergo RI for 10 years under
section 304(1)
of the

Indian Penal Code with a fine of Rs.5,000/- and sentenced to fine of Rs.

5,000/- under
section 323
IPC and in default of payment of fine, he is

directed to undergo SI for 1 month.

124. At this juncture it would be purposeful to discuss the testimony

of prosecution witnesses in order to answer the issues as referred in the

preceding paragraphs.

125. It is evident from record that in order to substantiate the case, the

prosecution had altogether examined 09 witnesses and they were PW.1

Ramdhyan Pal, PW.2 Binod Kumar Chaubey, who is the son of the

complainant Raj Kumar Chaubey, PW.3 Ramcharitar Chaubey, PW4-

Dinesh Kumar Chaubey, PW.5 Raj Kishor Chaubey, PW.6 Virendra

Chaubey, PW.7 Raj Kumar Chaubey (complainant/informant), PW.8

Krishna Tiwary has proved the report of Sergeant Major Rajdeo Rai, Ext.6

and PW.9 Mirtunjay Dubey has stated that he did not know about the

occurrence and he has been declared hostile.
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126. PW.1 Ramdhyan Pal has proved the signature of Raj Kumar

Chaubey on the protest petition, Ext. 1. He has further proved the signature

of the counsel of the Raj Kumar Chaubey Ext.1/1 also.

127. PW.2 Binod Kumar Chaubey, who is the son of the complainant

Raj Kumar Chaubey, has stated that the occurrence took place on

21.02.91, Thursday, at about 2 to 2.30 P.M. He was in his village. He heard

hallah of his father, who was saying for saving him, he came near his

house and saw that Dev Kumar Chaubey, Sumant Chaubey, Rajendra

Chaubey and Shardha Devi were bringing his father towards their house,

beating him. Deo Kumar Chaubey was armed with gun and Sumant and

Rajendra were armed with lathi. He tried to save his father. In the

meantime, his younger brother also came and he also tried to save his

father. Accused Deo Kumar Chaubey went his Varan dah and fired the

gun for killing Raj Kumar Chaubey. In the meantime, Nirmala Kumari

aged about 11-12 years, the daughter of the accused Deo Kumar Chaubey,

came there and the cartridge shoot her and she died at the spot. If Nirmala

would have not come, the cartridge would have hit Raj Kumar Chaubey.

He and his brother brought his father to his house. His father had got head

injury. They went to the police station thereafter.

128. PW.3 Ramcharitar Chaubey has stated that occurrence took place

on 21.02.91 at about 2 to 2.30 P.M. It was Thursday, on that day, he was

going to Sonpura to see nee the 'yajna'. When he reached near the door of

Sunil Tiwary, he saw that there was abusing at the door of Raj Kumar

Chaubey. Deo Kumar Chaubey, Sumant Chaubey, Rajendra Chaubey and

Shardha Devi were abusing. Deo Kumar Chaubey was armed with gun
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and Sumant Chaubey and Rajendra Chaubey were armed with lathi. When

Raj Kamar Chaubey came out of his house, Sumant Chaubey and Rajendra

beat him by lathi and he got head injury. Deo Kumar Chaubey told them

to bring Raj Kumar Chaubey and he would kill him. Thereafter, they were

bringing Raj Kumar Chaubey in their dhaba. Raj Kumar Chaubey raised

hallah to save him, In the meantime, both sons of Raj Kumar Chaubey

namely Vinod Chaubey and Birendra Chaubey, he and other persons came

there. Both the sons caught his father. Thereafter, Deo Kumar Chaubey

went in his dhaba with his gun. In the meantime, Vimla, the daughter of

Dev Kumar Chaubey, came after seeing the yajana and she reached

between Dev Kimar Chaubey and Raj Kumar Chaubey. In the meantime,

Deo Kumar Chaubey fired the gun which hit the girl and she died.

129. PW.4 Dinesh Kumar Chaubey has stated that occurrence took

place on 21.02.91 at about 2 to 2.30 P.M. It was Thursday. He was in

Sonpurwa 'yajna'. He came to know that there was quarrel between both

the brothers namely Deo Kumar Chaubey and Raj Kumar Chaubey and

fire was also done. Thereafter, he came to the place of occurrence. When

he reached, the occurrence had taken place. He saw that on the door of

Deo Kumar Chaubey, the dead body of his daughter Nirmala Kumari was

lying. The cartridge has pierced in the left kanpatti. He had heard that

cartridge from gun of Deo Kumar Chaubey hit the girl.

130. PW.5 Raj Kishor Chaubey has stated that the occurrence took

place on 21.02.91 at about 2 to 2.30 P.M. At that time, he was going to

bazzar. At the door of Deo Kumar Chaubey, there was halla Gulla. He

reached there and saw that Dev Kumar Chaubey, Rajendra Chaubey and
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Sumant Chaubey were pulling Raj Kumar Chaubey and were telling that

kill him after carrying. Deo Kumar Chaubey was armed with double barrel

gun. Sumant and Rajendra were armed with lathi. They carried away Raj

Kumar Chaubey at their door. On hallah, Binod Chaubey and Birendra

Chaubey both sons of Raj Kumar Chaubey reached there and started to

pull their father towards them. In the meantime, Deo Kumar Chaubey left

the hand of Raj Kumar Chaubey and went near his door and fired his gun.

In the meantime, Nirmala Kumari daughter of Deo Kumar Chaubey

reached there and the cartridge hit her. Thereafter the sons of Raj Kumar

Chaubey brought him to their house. Nirmala Kumari had died on the spot.

The police had reached at about 10.30 PM. in the night. The license of the

gun was in the name of Deo Kumar Chaubey himself. The cattle of Raj

Kumar Chaubey had entered in the field of Deo Kumar Chaubey. due to

it, they were pulling Raj Kumar Chaubey at their door. Raj Kumar

Chaubey had got injury. Therefore, he had also gone to the P.S. with him,

Dinesh Chaubey had gone later on. Raj Kumar Chaubey had given

statement to the Daroga.

131. PW.6 Virendra Chaubey is another son of the complainant Raj

Kumar Chaubey, He has stated that the occurrence took place on 21.02.91.

It was Thursday. It was 2 to 2.30 P.M. He was in his village. He heard the

voice of his father, who was telling to save him. He went towards his house

and saw that Deo Kumar Chaubey, Sumant Kumar Chaubey and Rajendra

Kumar Chaubey @ Susu and Shardha Devi were bringing his father

towards their house beating him. He tried to save him. The head of his

father had injured. There were abrasions on his entire body. Deo Kumar

Chaubey became angry and fired from his gun, which hit his own daughter
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Nirmala Kumari in place of his father. The daughter died there. He brought

his father to his house. Thereafter they went to Nagar Untari Police

Station. His father gave statement at the police station, thereafter he sent

Hospital where his treatment was done.

132. PW.7 Raj Kumar Chaubey is the complainant/injured himself.

He has stated that occurrence took place on 21.02.91 at about 2 to 2.30

P.M. On that day at about 10 to 11 P.M. one of his cattle had an entered

in the field of wheat crop of the accused Deo Kumar Chaubey. Deo Kumar

Chaubey, with his double barrel gun, went to his field and started to abuse

him taking his name. He went there and forbade him from abusing. He

told him as to what loss has been caused to him, he may take the same or

to carry the cattle to kani house. Both of them return to their house.

133. He had further deposed that on that day at about 2 to 2.30 P.M.

accused Deo Kumar Chaubey armed with his double barrel gun and his

son Sumant Chaubey and Susu Chaubey @ Rajendra Chaubey armed with

lathi and Shardha Devi came to his door and started to abuse him. He came

after hearing the abuse and forbade them from abusing. On it, he pointed

the gun towards him. In the meantime, one of the sons of Deo Kumar

Chaubey beat him from the back side on his head and he fell down.

Thereafter, Rajendra Chaubey and Sumant Chaubey caught him and were

trying to pull him towards their door. On his hallah, his sons Birendra

Chaubey and Vinod Chaubey reached there and they tried to pull him and

both the sons of Deo Kumar Chaubey pulling him towards them. Due to

it, Deo Kamar Chaubey became angry and from some distance fired the

gun towards him with intent to kill him. In the meantime, his daughter
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Nirmala Kamari came there and the gun hit her. She fell there. On it, the

accused persons started to see the girl leaving him. His sons brought him

to his house. He went to P.S. where; he gave his statement at about 03.30

Ρ.Μ. and told him the entire occurrence. The police issued a memo and

sent him to the Referal Hospital for treatment. The police had written his

statement but what was written by him, he could not know. Later on, he

came to know that police have written the entire statement. His statement

was done in the in Hospital. His statement was written at 03.30 P.M.

Thereafter he said that his statement was written at 10.30 P.M. also in the

Hospital, which was written wrongly. He was arrested by the police
u/s
I.P.C. and remanded to jail custody. It was a false case by Deo Kumar

Chaubey. He was in jail till one and a half month
in that case
. When he

came out from the jail and he got copy of the case, he came to know that

case was weakened. Thereafter, he filed complaint case.

134. The learned counsel for the appellants has contended that the

prosecution version as recorded in the FIR, subject matter of Criminal

Appeal (DB) No.190 of 1994 (R) is also required to be taken into

consideration wherein the prosecution version is that the pellet has been

fired from the country made pistol while the recovery is of a licensee gun

belongs to Deo Kumar Chaudhary, one of the appellants in these appeals,

but admittedly the pellet which has been recovered from the body of the

deceased has not been fired from the said licensee gun.

135. It has further been contended that learned trial Court has failed

to take into consideration that this very occurrence the father of the

deceased namely, Deo Kumar Choubey has been convicted by the learned
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trial Court, which is apparently a mechanical judgment because for one

murder there cannot be two different accused when there is case and

counter case as such this case is nothing but abuse of the process of the

court.

136. In the backdrop of the aforesaid settled proposition of law and

after discussion of testimony of prosecution witnesses as well as

contention of the learned counsel for the appellants this Court in these

appeals is to consider following issues: -

(i)Whether the material as has come in course of trial is

sufficient to attract the ingredients of offence committed under

Section 304(1)
of the Indian Penal Code against the appellants

namely Deo Kumar Chaubey? or

(ii) Whether the appellants are entitled for acquittal in absence

of cogent evidences?

137. Since, all the aforesaid issues are inextricably interlinked,

therefore, the same are being discussed and decided hereinbelow together.

138. Herein as per the complaint-cum-protest petition, wherein it has

been alleged that on 21.02.91 at about 01.30 PM bullock of the

complainant (accused/appellant in Criminal Appeal (DB) No.190 of 1994

(R)) had grazed the wheat crops of the accused Deo Kumar Chaubey

(appellant in Cr. Appeal (DB) No. 114 of 2013) from his field. Deo Kumar

Chaubey @ Onkar Chaubey, armed with Licence gun, went to the wheat

field and started to abuse.

139. On the same day at about 02.00 P.M., the accused Deo Kumar

Chaubey @ Onkar Chaubey, his son Rajendra Chaubey @ Susu Chaubey,
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Sumant Chaubey and his wife Shardha Devi came at the door of the

complainant and started to abuse him and when the complainant came out

of his house and tried to get understand them, the accused Deo Kumar

Chaubey pointed the gun upon him.

140. In the meantime, one of the sons of Deo Kumar Chaubey assaulted him

from the back side on his head and he fell down. and When Binod

Chaubey, Birendra Chaubey (sons of the complainant) saw him they came

there and tried to save their father.

141. In the meantime, a fire took place from the gun of Deo Kumar

Chaubey, which hit Nirmala Kumari, the daughter of the accused Deo

Kumar Chaubey. The accused persons started to see Nirmala Kumari. In

the meantime, both the sons of the complainant brought him to their house.

142. Thus, from the factual aspect it is evident that there is allegation

against the Deo Kumar Choubey that he had fired his gun during the said

feud which hit Nirmala Kumari, the daughter of the accused Deo Kumar

Chaubey and the said Nirmala Kumari, died on the spot instantly.

143. It has further come on the investigation that the gun of the

appellant Deo Kumar Chaubey has been sent for the examination to the

ballistic expert. Further, PW.8 Krishna Tiwary has proved the report of

Sergeant Major Rajdeo Rai which has been marked as Ext.6.

144. From perusal of the report of Sergeant Major, it is evident that he

had examined one regular D.B.B.L. gun which was seized in connection

with Nagar Untari P.S.Case No.24/91 (Session Trial No. 228 of 1991)

and he found that firing was done from both barrels, of the gun in the

recent past. He has however, also admitted that only chemical expert could

say as to in how many days smell evaporates from the gun. He had
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examined the gun on 9.3.91 i.e. after 16 days of the occurrence. However,

he has also stated that the gun might have been fired about a week or ten

days ago. He has, however, admitted that the gun was not sent to chemical

expert for chemical examination.

145. Thus, from the aforesaid factual aspect it is evident that one

regular D.B.B.L. gun which was seized in connection with Nagar Untari

P.S.Case No.24/91 (Session Trial No. 228 of 1991), but in the said report

it has not come that the material i.e. one plastic piece and 44 metalic

pieces, which has been found from the brain matter and the cavity , has

actually been fired from the said gun, therefore in absence of such finding

it cannot be stated that the prosecution has successfully proved the charge.

under
section 304(1)
of the IPC against the appellant Deo kumar Chaubey

beyond reasonable doubt.

146. At this juncture it needs to refer herein that the Hon'ble Apex

Court has categorically held in the case of
Ravi Sharma v. State (NCT of

Delhi
), (2022) 8 SCC 536 that the report of the ballistic expert is

obviously scientific evidence in the nature of an opinion. It is required to

use this evidence along with the other substantive piece of evidence

available on record, for ready reference the relevant paragraph of the

aforesaid judgment is being quoted as under:

"19. The report of the ballistic expert is obviously a scientific evidence
in the nature of an opinion. It is required to use this evidence along with
the other substantive piece of evidence available. The report is
inconclusive with respect to the firearm belonging to the appellant
being used for committing the offence."

147. Further, the Hon'ble Apex Court in the almost similar

circumstances which is available herein has observed in the case of

Sukhwant Singh v. State of Punjab
, (1995) 3 SCC 367 that where injuries
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are caused by firearms, the opinion of the ballistic expert is of a

considerable importance where both the firearm and the crime cartridge

are recovered during the investigation to connect an accused with the

crime. Failure to produce the expert opinion before the trial court in such

cases affects the creditworthiness of the prosecution case to a great extent.

For ready reference the relevant paragraph of the aforesaid judgment is

being quoted as under:

21. There is yet another infirmity in this case. We find that whereas an
empty had been recovered by PW 6, ASI Raghubir Singh from the spot
and a pistol along with some cartridges were seized from the possession
of the appellant at the time of his arrest, yet the prosecution, for reasons
best known to it, did not send the recovered empty and the seized pistol
to the ballistic expert for examination and expert opinion. Comparison
could have provided link evidence between the crime and the accused.

This again is an omission on the part of the prosecution for which no
explanation has been furnished either in the trial court or before us. It
hardly needs to be emphasised that in cases where injuries are caused
by firearms, the opinion of the ballistic expert is of a considerable
importance where both the firearm and the crime cartridge are
recovered during the investigation to connect an accused with the
crime. Failure to produce the expert opinion before the trial court in
such cases affects the creditworthiness of the prosecution case to a
great extent.

148. Now re-adverting to fact of the instant case it is evident that there

is no cogent evidence available on record to prove that the appellant

namely Deo Kumar Chaubey was the author of the gunshot which killed

Nirmala Kumari (daughter of appellant/accused namely Deo Kumar

Chaubey). Further, the ballistic report did not support the prosecution case

substantially as there is no finding in the said report regarding the pellets

(metallic ball) found in the brain matter of deceased, has been fired from

the said Gun belonging to the appellant.
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149. Thus, even at the cost of repetition, this Court is of considered

view that there was no evidence on record suggestive of the inference

which was drawn by the learned trial Judge against the present appellant

namely Deo Kumar Chaubey (appellant in Criminal Appeal (DB)No. 114

of 2013) that he was author of the shot that hit and killed the deceased

Nirmala Kumari, therefore the conviction of the appellant namely Deo

Kumar Chaubey under Section 304 (1) is not sustainable herein.

150. So far as the conviction of the appellants (Cr. Appeal (DB) No.

114 of 2013 and Cr. Appeal (DB) No. 483 of 2013) under
Section 323
of

the IPC is concerned it is evident that the persons of both sides i.e.

complainant Raj Kumar Choubey (since dead) and the appellant Deo

Kumar Chaubey have sustained simple injuries and both have been

medically examined on the requisition of the police and their injuries

report have been marked as annexure before the learned trial court.

151. Therefore, on the basis of discussion made hereinabove, this

Court is of the considered view that the conviction of the appellants (Cr.

Appeal (DB) No. 114 of 2013 and Cr. Appeal (SJ) No. 483 of 2013) by

the learned trial Court under
Section 323
of the IPC requires no

interference.

Conclusion

Cr. Appeal (DB) No. 190 of 1994(R)

152. Thus, on the basis of discussion made hereinabove it is

considered view of this Court that the conviction of the appellants of the

Cr. Appeal (DB) No. 190 of 1994 (R) under
sections 452
,
,
/
,
/
of the IPC is not sustainable in the fact and circumstances of the

instant case, therefore the appellants of Cr. Appeal (DB) No. 190 of 1994
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(R) are hereby acquitted from all the charges. Further the appellant,

namely, Satyendra Choubey has also been acquitted from the charge under

section 27
of the Arms Act.

153. Since, this Court has found that the appellants of Cr. Appeal

(DB) No. 190 of 1994 (R), namely, Vinod Kumar Choubey and Virendra

Kumar Choubey guilty for the offence under
section 321
of the IPC

punishable under
Section 323
of the IPC, accordingly they have been

sentenced for the period already undergone by them.

154. This Court, therefore, is of the view based upon the discussions

made hereinabove, that the impugned judgment (assailed in Cr. Appeal

(DB) No. 190 of 1994) needs interference, accordingly, the judgment of

conviction and the order of sentence both dated 30.11.1994 passed by the

learned 4th Addl. Sessions Judge, Palamu, Daltonganj in Sessions Trial

No. 228 of 1991 is hereby quashed and set aside.

155. Since from the record it is evident that appellants of Cr. Appeal

(DB) No. 190 of 1994 (R) are on bail, therefore they are discharged from

the liability of their bail bond.

156. In view of the above, Cr. Appeal (DB) No. 190 of 1994 (R) is

hereby partly allowed.

Cr. Appeal (DB) No. 114 of 2013 and Cr. Appeal (SJ) No. 483 of 2013

157. Thus, on the basis of discussion made hereinabove it is

considered view of this Court that the conviction of the appellant namely

Deo Kumar Chaubey (appellant in Cr. Appeal (DB) No. 114 of 2013)

under
Section 304 (1)
of the IPC is not sustainable in the fact and

circumstances of the instant case, therefore the appellant namely Deo
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Kumar Chaubey are hereby acquitted from the charge under
Section 304

(1)
of the IPC.

158. Further this Court is of the considered view that the conviction

of the present appellants by the learned trial court under
Section 323
of

the IPC requires no interference by this Court.

159. Accordingly, the judgment of conviction dated 13.02.2013

passed by the learned Addl. Sessions Judge-1st, Garhwa in S.T. No. 32 of

1999 are modified to the extent as discussed above.

160. With the aforesaid observations/directions, the Cr. Appeal (DB)

No. 114 of 2013 is hereby partly allowed and Cr. Appeal (SJ) No. 483 of

2013 stands dismissed.

161. Since from the record it is evident that appellant of Cr. Appeal

(DB) No. 114 of 2013, namely, Deo Kumar Choubey is on bail, therefore

he is discharged from the liability of his bail bond.

162. Pending I.As, if any, stands disposed of.

163. Let lower Court records be transmitted to the Court concerned,

forthwith.

(Sujit Narayan Prasad, J.)

I Agree.

(Rajesh Kumar, J.)

(Rajesh Kumar, J.)
Sudhir
Jharkhand High Court,
Dated:08/07/2025
AFR