Babu Lal Sah vs The State of Bihar

M.L. Visa. J.

Both these apeals are directed against the same judgment and order dated 07.12.1987 passed by IIIrd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 40 of 1982, therefore, they have been heard together and are being disposed of by this common judgment.

Lakhendra Choudhary @ Lakhindra Choudhary, Appellant of criminal appeal No. 626 of 1987 has been convicted and sentenced to undergo rigorous imprisonment for life u/s 302, Indian Penal Code and Appellant Babu Lal Sah, Appellant of criminal appeal No. 606 of 1987 has been convicted and sentenced to undergo rigorous imprisonment for life u/s 302 read with Section 34, Indian Penal Code.

The case of prosecution, as disclosed in the Fardbayan (Exhibit-4) of informant Sukhdeo Prasad (P.W. 1), in short, is that on 08.02.1981 at about 8.45 p.m. when the informant was lying indisposed in his house, he heard a voice coming from outside his house that his son Binod had been assaulted by a dagger and was lying injured in front of the house of Gopi Khanna. The informant, after coming out from his house, straightway went to the Darwaza of Gopi Khanna where he found that his son Binod was being taken on a Rickshaw by some persons towards hospital. The wife of informant also following him, came there. The informant, on seeing that his son was being carried to the hospital, also followed him on foot and at hospital, he found some persons of his mohalla, namely, son of Ramji Prasad (not examined), Baidyanath Prasad (P.W. 6), Anil Kumar (not examined) and others. His son was operated on and after operation, he was brought to bed and on the same day at about 10 p.m., his son died. The informant, in his Fardbayan (Ex-hibit-4) has further stated that his deceased son was member of a Puja Committee and both the Appellants and co-accused Anil Kumar were also members of that Committee and he came to know that at the time of occurrence, Appellants and co-accused Anil Kumar had some altercations with his deceased son and in that altercation, his son was assaulted with dagger causing his death. He further stated that people of mohalla, who had seen the occurrence, would depose. The Fardbayan (Exhibit-4) of informant was recorded on the day of occurrence at about 7.15 p.m. at Sadar Hospital, Muzaffarpur by Sub Inspector R.D. Singh (not examined). On the basis of Fardbayan (Exhibit-4) of informant, a case u/s 302/34, Indian Penal Code was registered against unknown. The police, after investigation, submitted chargesheet against both the Appellants and co-accused Anil Kumar u/s 302/34, Indian Penal Code. After taking cognizance, the case was committed to the Court of Session for trial but during the trial, co-accused Anil Kumar absconded and, therefore, the trial proceeded against both the Appellants, after separating the trial of co-accused Anil Kumar. After trial Appellant Lakhendra Choudhary (sic) Lakhindra Choudhary was found guilty u/s 302, Indian Penal Code and Appellant Babu Lal Sah was found gullty u/s 302 read with Section 34 Indian Penal Code and both the Appellants were sentenced to undergo rigorous imprisonment for life.

The case of Appellants before the Court below, as it appears from the trend of cross-examination of prosecution witnesses, is complete denial of charges and their false implication in this case on account of enmity.

In order to prove its case, the prosecution has examined ten witnesses, Sukhdeo Prasad (P.W. 1) is informant. B.K. litra (P.W. 9), is the doctor who held auppsy on the dead body of deceased son of (sic)formant. B.N. Tripathi (P.W. 8) is the Inigating Officer. Sitaram Singh (P.W. 2) and Ram Pratap Mistri (P.W. 3) have not supported the case of prosecution and they have been declared hostile. Prabhat Kumar Sulekha (P.W. 5) is a tendered witness Baidyanath Prasad (P.W. 6) had gone to hospital and had seen the deceased in injured and unconscious condition and has said that doctor had operated the deceased and after coming out from operation theatre deceased died. He had said that inquest report was prepared of dead body deceased in his presence and he has proved his signature (Exhibit-1) on the inquest report. He has also proved the seizure list (Exhibit-1/1) prepared by police when blood-stained cloths of deceased were seized by police in hospital. Rajendra Prasad (P.W. 7) had reached the place of occurrence on hearing hulla and had seen that some persons were carrying the deceased to hospital and he also went to hospital where he put his signature as a witness on the Fardbayan (Exhibit-4) of Informant.

Sukhdeo Prasad (P.W. 1), the informant, in his evidence, has simply stated that on the day of occurrence at about 9 p.m. when he was in his house, he heard hulla and also found one or two persons crossing the lane saying that his son had received Chura blow and when he came out from his house and came to the place of occurrence which is situate near the house of Babu Lal Sah, he saw his son Binod lying injured there and also found that he was being taken to hospital by rickshaw. He also went to hospital where after half an hour, his neighbors Baidyanath Prasad (P.W. 6) and Ramji Lal Sharma (not examined) came there and his son was operated on but after operation, his son died in the hospital. He has said that there is a committee in his mohalla for Saraswati Puja but he does not know who are the members of the committee. He has proved his signature (Exhibit-1) on his Fardbayan (Exhibit-4) which, according to him, was recorded by police in hospital. Dhanwanti Devi (P.W. 4), the mother of deceased, has simply stated that on the day of occurrence, her husband was not well and she was applying oil to him and one person informed that her son Binod had been assaulted by Chura and the assailant, after assault, had fled away. Her husband then came out of the house and she also followed him but she became unconscious and remained so for about four days and after regaining consciousness, she came to know that her son had already died. She has not said any thing against any of the Appellants.

Dr. B.K. Mehta (P.W. 9), in his evidence, has stated that on 09.02.1981 at about 11 a.m., he held autopsy on the dead body of deceased and he found one incised and punctured injury 1-1/2" x 1/2" x 1-1/2" on the upper one third of right thigh and on dissection, muscles were found ruptured and on further dissection, stem oval anti was found cut and rest other blood vessels round that were also found cut. According to him, the injury was probably caused by sharp cutting weapon such as dagger and time elapsed since death was within 24 hours. He has further said, that injury was sufficient to cause death in ordinary course of nature and he has proved his post mortem examination report (Ex-hibit-3). In cross-examination, he has accepted that injury was not caused on any vital part of body and deceased would have been saved if he would have been treated promptly after the injury was caused.

Ramanand Singh (P.W. 10) is the only witness who said about the occurrence. He has said that on the day of occurrence at about 8-8.30 p.m., he was in the verandah of first floor of his house which is a three-storied building and when his daughter came from ground floor and informed him that in the Puja Pandal, some quarrel was going on, he came near the railing box of his verandah from where he saw that ''Pandal'' of Kanhaiya Mandal Saraswati Puja Committee towards south crossing the road was being decorated and a petromax was lighting there and some boys were decorating the Pandal and both the Appellants and co-accused Anil Kumar were quarrelling with deceased and deceased was also quarrelling with them rigorously. The deceased, thereafter, gave a push to Appellant Babu Lal Sah on which Babu Lal Sah became agitated and shouted for killing the deceased. He then hurriedly came down and proceeded towards the place where the quarrel was going on and when he reached there, he found Binod was lying on the ground with injury on his right thigh and injury was deep wound caused by Chura and it was bleeding profusely. He has further stated that he saw both the Appellants and Anil Kumar fleeing away from there and Appellant Lakhendra Choudhary @ Lakhindra Choudhary was carrying a Chura. About deceased, he has said that deceased became unconscious and after putting him on rickshaw, some persons carried him to hospital and parents of deceased also came to the place of occurrence and they also went to hospital and later on he came to know that deceased died In hospital. In cross-examination, he has admitted that he had seen the quarrel from his house. About the width of road, he stated that it is forty feet and the place of occurrence is situate ten feet towards south from road. About his house, he has stated that his house is situate towards north of road. About Appellants, he has said that when he had crossed half of the road, the Appellants started running away and Appellant Babu Lal Sah fled towards north whereas Appellant Lakhendra Choudhary @ Lakhindra Choudhary and co-accused Anil Kumar fled towards easel and by the time, he reached the place of occurrence, he found that except the Appellants the other boys, who were decorating the Pandal, had already fled away. In para-7 of his cross-examination, he has admitted that his statement was recorded by police on the next day of occurrence and has further said that before recording his statement by police, he had not named Appellants as the persons who were quarrelling with deceased or as the persons who committed his murder.

B.N. Tripathi (P.W. 8), the Investigating Officer of this case, in his evidence, has said that on 08.02.1981 at about 12 o''clock in the night, under the orders of his high officials, he had gone to Sadar Hospital, Muzaffarput where he took the charge of investigation of this case from Sub Inspector Ram Dayal Singh and recorded the further statement of informant and P.W. 6 and also seized blood-stained cloths of deceased and prepared seizure list (Exhibit-2) and on the same night, he inspected the place of occurrence. According to him, the place of occurrence is situate south at a distance of forty feet from Jawaharlal Road of Muzaffarpur Town and he found that at the place of occurrence, a Pandal for Saraswati Puja was being erected and twenty feet in east-north corner of Pandal, he found blood in sufficient quantity. He has said that at a distance of twenty five feet west of Pandal there is a temple and in front of place of occurrence, house of witness Ramanand Singh (P.W. 10) is situate towards north of road and he had found a black colored leather cover of dagger near the temple (sic)hd he seized that cover and blood-stained oil and prepared another seizure list (Exhabit 2/1) which was signed by Sitaram figh (P.W. 2) and Ram Pratap Mistri (P.W. 3). He has proved their signatures on the seizure list which are marked Exhibits 1/2 and 1/3 respectively. He has also proved he Fardbayan (Exhibit-4) of informant and formal first information report (Exhibit-5).

From the evidence adduced on behalf of prosecution, we find that, except Ramanand Singh (P.W. 10), no other witness has said anything about the Appellants. Ramanand Singh (P.W. 10), as discussed above, has admitted that he saw from the first floor of his house Appellants alongwith co-accused Anil Kumar quarrelling with deceased but at the same time, he has said that deceased pushed Appellant Babu Lal Sah who became agitated and shouted for killing the deceased. So far Appellant Babu Lal Sah is concerned, this is the only evidence against him but B.N. Tripathi (P.W. 8), Investigating Officer, has admitted that this witness, before him, had not stated that the deceased pushed Appellant Babu Lal Sah on which Babu Lal Sah became agitated and shouted for killing the deceased. So far Appellant lakhendra Choudhary @ Lakhindra Choudhary is concerned, we find that evidence against him is that when Ramanand Singh (P.W. 10) reached the place of occurrence, he saw him running away with a dagger in his hands. He has further said that Appellant Babu Lal Sah ran towards north and this Appellant alongwith co-accused Anil Kumar ran towards east but, as discussed above, the evidence of Investigation Officer is that he recovered the (cover of dagger near temple which is situate twenty five feet west from place of occurrence. In this view of the matter, the recovery of cover of dagger at a place twenty five feet west from place of occurrence seems very peculiar. Not only this, Rajendra Prasad Singh (P.W. 7), in his cross examination, has said that he had seen a dagger fallen at place of occurrence but a boy picked up that dagger and fled away. He has further said that he does not recognize Appellant Lakhendra Choudhary @ Lakhindra Choudhary. His evidence is clear that the boy, who picked up the dagger from place of occurrence and fled away, was not Appellant Lakhendra Choudhary @ Lakhindra Choudhary. From the evidences of Ramanand Singh (P.W. 10) and Investigation Officer, it appears that the house of Ramanand Singh (P.W. 10) is situate north of a road and place of occurrence is in Panda) and the Pandal was situate at a place about forty feet south from the road. The width of road, as given by Ramanand Singh (P.W. 10), is about forty feet and the evidence of Investigating Officer is that he found blood at a place about twenty feet in east-north corner of Pandal, shows that the place, where the blood was found, is situate about one hundred feet from the house of Ramanand Singh (P.W. 10). Admittedly, occurrence is said to have taken place in the night and according to Ramanand Singh (P.W. 10), only a petromax was lighting at the place of occurrence. In this view of the matter, the evidence of Ramanand Singh (P.W. 10) that he saw from the first floor of his house that Appellants alongwith co-accused Anil Kumar were quarrelling with deceased, becomes quite doubtful. Besides this, Ramanand Singh (P.W. 10) is not an eye witness to the occurrence and his evidence is only to the effect that he had seen both the Appellants and co-accused Anil Kumar quarrelling with deceased and, thereafter, when he proceeded towards the place of occurrence, he found Appellants and co-accused Anil Kumar running away from the place of occurrence and deceased was lying injured with bleeding injuries on his right thigh. Ramanand Singh (P.W. 10), in his evidence, has denied any enmity with Appellant Babu Lal Sah but he has admitted that he has filed a criminal case against Appellant Babu Lal Sah, his brother Raja Sah, his nephew Ashok Kumar and others but according to him, five years after occurrence, Appellants Babu Lal Sah asked him not to depose in this case and on his refusal, Appellant Babu Lal Sah assaulted him and his wife. But Baidyanath Prasad (P.W. 6), in his cross-examination, has admitted that he was Ward Commissioner of Ward No. 18 in which Appellant Babu Lal Sah is having his two-storied house and adjacent west to the house of Appellant Babu Lal Sah, the house of Ramanand Singh (P.W. 10), which is three-storied, is situate and there is a lane in between their houses and there was differences between Appellant Babu Lal Sah and Ramanand Singh (P.W. 10) before the murder of deceased and Ramanand Singh (P.W. 10) was insisting Appellant Babu Lal Sah for raising wall of his house. The evidence of Ramanand Singh (P.W. 10) is that by the time he reached the place of occurrence, except Appellants and co-accused Anil Kumar, all the persons, present there, had already fled away, is also not believable because it seems very unusual that when other persons fled away, the Appellants and co-accused Anil Kumar remained present till his arrival as if they were only waiting to be identified by this witness. The evidence of Dr. B.K. Mehta (P.W. 9) that he found only one incised and punctured injury of the dimension of 1-1/2" x 1/2" x 1-1/2" on upper one-third of right thigh which was sufficient to cause death in ordinary course of nature is also not convincing particularly in view of his own admission in cross-examination that injury found on the person of deceased was not on any vital part of body and deceased would have been saved if he would have been treated promptly after injury was caused. It is true that conviction of an accused can be based on the evidence of a solitary witness and there is no rule that such type of evidence in all cases require corroboration but then for sustaining conviction on the basis of evidence of a solitary witness, the evidence must be rust worthy and free from all possible doubts. In the present case, the solitary witness Ramanand Singh (P.W. 10) was on inimical terms with Appellant Babu Lal Sah prior to occurrence and he is not an eye witness on the point of assault by any one of the Appellants on deceased and his evidence that deceased pushed Appellant Babu Lal Sah who became agitated and raised (sic)to kill deceased is not trustworthy in view of the evidence of investigating Officer that he had not stated such before him. Besides this, he has admitted that at the place of occurrence parents of deceased also reached but at the same time, he has admitted that till next day of occurrence, when his statement was recorded by Investigating Officer he did not tell anybody, the name of either of the Appellants as the persons quarrelling with deceased and committing his murder It is very surprising that after seeing a part of occurrence, this witness will not tell the same even to the parents of deceased Besides this, the informant, who is the father of deceased and who had reached the place of occurrence when he saw his deceased son being carried on a rickshaw to hospital by some persons, has not name this witness among the persons present the place of occurrence, although the informant has given the names of some persons of his (sic) who, according (sic) him, were found present in hospital. So, (sic) find that on the basis of evidence of on (sic) Ramanand Singh (P.W. 10), which is not convincing and trustworthy, the change against Appellants cannot be said to be proved. We, therefore, hold that the Prosecution in this case has not been able to above the charges against both the Appellants.

In the result, both the appeals are (sic)owed and both the Appellants are acquitted judgment and order of Court be(sic)onvicting and sentencing the Appellants hereby set aside. Both the Appellants who are on bail, are ordered to be (sic)ischarged from their liabilities of bail bonds.

B.K. Jha, J.

I agree.