Madan Chaudhary S/O Late Sheo Bachan Chaudhary vs The State Of Bihar

The appeal filed on behalf of the sole appellate is directed against

the judgment of conviction dated 20.12.2012 and the order of sentence

dated 21.12.2012 passed by the learned Additional Sessions Judge-III,

Siwan in S.T. No. 139 of 2011 (arising out of Hussainganj P.S. Case No.

49 of 1997) whereunder the appellant was held guilty under section 302

IPC and 27 of the Arms Act and sentenced to undergo R.I. for life with fine

having default clause and R. I for 03 years with fine having default clause

respectively.

The prosecution case, as unfolded in the Fardbayan (Ext.2) lodged

by P.W. 4 Ram Ekbal Bharti on 25.03.1997 at 10.00 A.M. at the Sadar

Hospital, Siwan and recorded by S.I. of the town police station, Siwan, in

brief, is that on the previous date at about 8.30 P.M. the informant was at

his house with his younger brother (deceased) when they heard a Hulla that

one Rishi Raj Bharti was being assaulted. Both of them rushed towards the

house of Firangi Sah where he could see the appellant armed with double-

barreled gun and holding out threats to all to kill if any one dared to come

in front of him. The deceased asked as to why he was doing so whereafter

it is alleged that he was fired at which hit him in his head. The appellant

brandishing his gun thereafter escaped from the place of occurrence.

Several witnesses including P.W. 2 are said to have witnessed the

occurrence. The injured was carried to the Sadar Hospital Siwan where he

was declared dead. Old enmity has been cited as reasons for crime.

Lodging of the Fardbayan initiated the investigation. Be it noted that the

death inquest proceeding was carried out at Sadar Hospital Siwan itself

whereafter the dead body was dispatched for holding the post mortem

examination and report.

P.W. 3 Dr. Habibullah Khan conducted the autopsy on the cadaver

on 25.03.1997 at 3.05 P.M. and found the following injury on his person:-

"External injury- Lacerated wound on vertex of skull 6"x4", charred skin around the wound. Fractured frontal parietal bone of skull. Pellet mark above left eye-brow."

The post mortem report has been produced on record as Ext. 1.

P.W. 6 investigated the case, in course whereof, the death inquest

proceeding was made. The post mortem report was received by him from

Siwan. The place of occurrence was inspected and the statements of the

witnesses were recorded. In the meantime, on 02.05.1997 P.W. 5 took over

the investigation and upon conclusion thereof submitted the charge-sheet

against the sole appellant whereon cognizance of the offence was taken and

the case was committed to the court of sessions for trial. The learned trial

court framed the charge(s) and read over/explained to the appellant to

which he pleaded not guilty and claimed to be tried.

In order to bring home the guilt, the prosecution, in all, examined

06 prosecution witnesses. The defence, however, did not examine any

witness or produce any document. The case of defence is complete denial

of his implication in the crime. The occurrence had not taken place in the

manner stated by the prosecution.

P.W. 1 Savru Chaudhary is a co-villager who, in his examination-

in-chief, has claimed himself as an eye-witness to the occurrence. P.W. 2 is

a close relative of the informant and is cited as an eye-witness in the

Fardbayan itself. He has also claimed himself as an eye-witness to the

occurrence. P.W. 3 is the doctor who conducted the post mortem and

submitted the post mortem report (Ext.1). P.W. 4 is the informant himself.

P.W. 5 is the second I.O. who submitted the charge-sheet whereas P.W. 6 is

the I.O. who conducted the investigation and recorded the statements of the

witnesses. On an appraisal of the evidence adduced by the prosecution, the

trial court held him guilty and punished in the manner stated above.

Heard Mr. Hemendra Prasad Singh, learned Senior Counsel

appearing for the appellant, Mr. S.N. Prasad, APP for the State as well as

Mr. Ramadhar Shekhar, the counsel for the informant.

It has been urged on behalf of the appellant that on the strength

of the deficient evidence of the prosecution the charges have not been

proved beyond shadow of reasonable doubts. He next submits that on

analyzing the evidence of P.Ws.1 and 2, it would appear that they are

actually not the eye-witnesses to the occurrence. The medical evidence

does not fully support the prosecution case. P.W. 4 (informant) in view of

the evidence of other witnesses including the I.O. does not inspire

confidence and his evidence cannot be relied to convict the appellant. The

genesis of the occurrence and the manner of occurrence has not been

proved. There remains a serious doubt about the place where the

occurrence had taken place as none from the vicinity has been produced

by the prosecution.

The counsel for the State as well as the informant, in opposition,

have supported the impugned judgment. It has been submitted that the

evidence of P.Ws 1, 2 and 4 conclusively prove the guilt of the appellant.

We would examine the relevant evidence in the light of the

submissions advance by the appellant as well as the State. P.W. 1, in his

examination-in-chief, has stated that while he was at his Bathan, he could

see the appellant crossing the Bathan armed with double-barreled gun. He

followed him up to the house of Firangi Sah where the informant and his

brother also arrived. When the deceased asked as to why he would assault,

the appellant fired from his gun which caused injury in the front portion of

his head whereafter the appellant escaped from the place of occurrence.

The injured was carried by him and other witnesses to the hospital where he

was declared dead. However, from para 11 of the evidence of the I.O.

(P.W. 6) it is evident that this witness in his C.D. statement had flatly

denied of having witnessed the actual assault. The defence has drawn

attention of this witness to his previous statement before the police and

thereafter the I,O. was cross-examined where the aforesaid disclosure was

made by him in court. We also find from para 12 of his deposition that he

had not stated about his presence at his Bathan when the appellant had

allegedly crossed the road near his Bathan. It has been submitted on behalf

of the appellant that such statement having been made by this witness

before the I.O. immediately after the occurrence would suggest that what

this witness is stating in court was not claimed in his C.D. statement.

On the other hand, it has been submitted on behalf of the State as

well as the informant that it was a clear lapse on the part of the I.O. in

recording that nothing substantial was disclosed by this witness in course of

his interrogation. Any laxity on the part of the I.O. would not fail the

prosecution case.

P.W. 2 is the cousin brother of the deceased as he himself admits.

If we carefully scan his evidence, it is found that the deceased on the

relevant date and time was not with the informant. He was with this

witness. On hearing a Hulla that one Raj Rishi Bharti was being assaulted,

he along with the deceased proceeded to the place of occurrence where the

informant was present from before. In order to verify his statement made

before the police we turn to the evidence of I.O. (P.W.6). The I.O. in para

15 has clearly deposed that this witness had stated before him that on the

relevant date he had not actually seen the assault perpetrated on his

brother. When he rushed to the house of Firangi Sah he could see his

brother (deceased) falling on the ground with the injury on his head. We

further find from his evidence that the deceased had no animosity with the

appellant whereas this witness (P.W.4/informant) was having a grudge

against the appellant (para 5).

Now we turn to the evidence of the informant (P.W.4). He is full

brother of the deceased. According to him, the deceased was with him at his

house when he heard that Raj Rishi Bharti was being assaulted by someone

whereupon he along with the deceased went towards the house of Firangi

Sah where the appellant was found standing with a double-barreled gun in

his hand and was abusing and threatening that whoever comes in his way

will be shot. The deceased questioned him whereafter he fired at him

causing injury near his left eye. The appellant escaped towards east. He

along with the villagers including Ashok Bharti and Munna Bharti (both not

examined) and P.W. 2 and others carried him to the hospital at Siwan where

he was declared dead. It was the day of Holi festival. In paragraph 5 he has,

however, stated that neither Raj Rishi Bharti nor the deceased had

animosity with the appellant. He had some animosity with him. More than

50 persons had assembled there. He further states that the injury sustained

by the deceased was wrapped by him with a scarf (Gamcha) but blood had

fallen on the ground. The I.O. (P.W. 6) has, however, stated that the

informant has not said before him that he heard Hulla that Raj Rishi Bharti

was being assaulted by someone. In paragraph 16, he has stated that in

spite of his best efforts no one from the vicinity appeared to narrate the

ocular version. If his evidence is contrasted with the deposition of P.W. 2, a

serious doubt is created on the prosecution case. P.W. 2 at para 1 has

stated that the deceased had accompanied him to the place of occurrence

whereas the informant has claimed otherwise. There are serious omissions

in their evidence which in the facts of the case would be considered as

contradictions. P.W. 1 is yet another witness who, in course of trial, has

claimed himself as eye-witness. However, from the evidence of the I.O. it is

found that no such claim was made by him in his statement before the I.O.

On close perusal of the prosecution evidence, it is concluded that

the prosecution has miserably failed to prove the genesis as well as the

manner of occurrence. The I.O. (P.W. 6) has neither stated about the

presence of the blood at the place of occurrence nor seizure thereof. P.W. 5

who had taken over the investigation has stated that he was not given the

sample of any memo of collection of blood from the place of occurrence.

The evidence of P.Ws 2 and 4 cannot go together. According to P.W. 2, the

deceased was at the relevant date and time with him whereas according to

the informant (P.W.4) the deceased was with him at his house from where

they proceeded to the place of occurrence.

The autopsy surgeon (P.W. 3) found the lacerated wound on the

vertex of the skull having charred skin around the wound causing fracture

on the frontal and parietal bone. In para 2, on a query, he has opined that the

injury found on the body of the deceased was not possible in standing

position. In course of his rcross-examination, he has stated that the kind of

injury having charred skin around it was only possible when fired from

very close range. The prosecution case is not of firing on the deceased from

such a close range. The urinary bladder was found empty which is a

condition generally found in the morning hours when the person wokes

up. We have no reason to doubt the findings of the doctor.

On a close appraisal of the entire evidence available on record

we are of the considered opinion that the prosecution case materially lacks

on several counts. It is difficult to place reliance on the evidence of P.W. 2

and P.W. 4. What surprises us is that the prosecution failed to adduce any

evidence on the genesis of the occurrence as alleged in the FIR. The

genesis of the occurrence as alleged in Fardbayan is that the informant

heard a rumour that his villager Raj Rishi Bharti was being assaulted by

someone. Thereafter, he along with the deceased rushed to the place of

occurrence near the house of Firangi Sah (just 100 yards away from his

house). In his evidence, he has narrated the said fact. From police report, it

appears that the I.O. had recorded the statement of the aforesaid Firangi

Sah and Raj Rishi Bharti during investigation. These two witnesses are also

cited in the charge-sheet but the prosecution has neither examined them

nor there is any explanation for their non-examination. The evidence of Raj

Rishi Bharti who was being assaulted by someone and for whom the

informant and the deceased had rushed to intervene, was very crucial to

establish the genesis of the case, particularly in view of the fact that there

was no enmity or motive for the appellant to cause firearm injury. Non-

examination of those witnesses lead us to conclude that the prosecution

failed to establish the genesis of the occurrence. We have appreciated the

case in the background of the deposition of P.W. 5(second I.O.) at para 6)

that strong remuour was doing the rounds that one person had received

injury on the day of Holi on account of scrambling (China Jhapti). We

have also taken into account the positive evidence of the informant that the

appellant absolutely had no motive to assault the deceased as there was

absolutely no enmity between them. Having suspected the evidence of

P.Ws 2 and 3 we find no other witness, much less the independent witness,

produced by the prosecution to corroborate the genesis of occurrence, the

manner and the place of occurrence. In these factual scenario appearing

from the records we do not find it safe to convict the appellant. He is

entitled to the benefit of doubt.

Resultantly, the appeal is allowed. The judgment of conviction

and order of sentence dated 20.12.2012 and 21.12.2012 respectively,

recorded by Ad hoc Additional Sessions Judge-III in S.T. No. 139 of 2011

against the appellant Madan Chaudhary is set aside. He shall be released

from the jail custody forthwith, if not required/wanted in any other case.