NAWAL KISHORE CHAUDHARY vs STATE OF BIHAR

This criminal appeal has been preferred against the Judgment of conviction and sentence order dated 28.02.1995 passed by the learned 2nd

Additional Sessions Judge, Purnia, in Sessions Trial No.321 of 1990/Trial No.52 of 1993, by which and whereunder he convicted the sole appellant

for the offences punishable under Sections 302 and 201 of the Indian Penal Code, whereas the sole appellant was acquitted of the charge framed

under Section 364 of the Indian Penal Code. Furthermore, the learned trial court sentenced the sole appellant to undergo rigorous imprisonment for

life for the offence punishable under Section 302 of the Indian Penal Code, whereas to undergo rigorous imprisonment for the period of seven years

for the offence punishable under Section 201 of the Indian Penal Code. However, both the sentences were ordered to run concurrently.

The prosecution case is that on 02.09.1988, P.W.3 Rameshwar Ram gave an application to the Officer Incharge of K. Nagar Police Station,

mentioning therein that his brother Kusheshwar Ram (deceased) was working as Chowkidar at the brick-kiln of Dhanraj Mal “Sidhi†and the

appellant Nawal Kishore Chaudhary was working as Munshi at the aforesaid brick-kiln. P.W.3 mentioned in the aforesaid application that in the

evening of 01.09.1988, his brother Kusheshwar Ram did not return to his home and on 02.09.1988, he got information through the Mukhiya of

Ganeshpur Gram Panchayat to this effect that his brother died of drowning and at that time, he was along with the sole appellant.

On the basis of the aforesaid application, U.D. CaseNo.5 dated 02.09.1988 was registered and in course of investigation of the aforesaid U.D.

Case, the post-mortem report of the deceased was received. The post-mortem report of the deceased disclosed that the deceased died due to head

injury and the cause of death was not of drowning. Furthermore, in course of investigation of the aforesaid U.D. Case, the wife and the mother of

the deceased disclosed that on 01.09.1988, the appellant went to the house of the deceased and took him from his house and, subsequently, on

02.09.1988, the dead body of the deceased was recovered.

On the basis of the aforesaid investigation of theaforesaid U.D. Case, K. Nagar P.S. Case No.218 of 1988 for the offences under Sections 302

and 201 of the Indian Penal Code was registered on 12.09.1988 and on the same day, formal F.I.R. was drawn up, which was put before the Chief

Judicial Magistrate on 14.09.1988.

The Investigation Officer took the charge ofinvestigation and after completion of investigation, charge-sheet was submitted. The cognizance of the

offence was taken and case was committed to the court of sessions in usual way.

The sole appellant stood charged for the offencespunishable under Section 364, 302 and 201 of the Indian Penal Code.

In course of trial, the prosecution examined,altogether, 9 witnesses and also proved the inquest report as well as the post-mortem report of the

deceased.

The statement of the appellant was recorded underSection 313 of the Code of the Criminal Procedure, in which he admitted the fact of taking of

the deceased from his house on 01.09.1988 but denied the fact of committing murder of the deceased as well as taking money from the deceased.

The defence also examined two defence witnesses.

The learned trial court, having scrutinized theevidences available on the record, convicted and sentenced the appellant on the ground of last seen.

Learned Amicus Curiae for the appellant submitsthat the learned trial court failed to appreciate the evidence in its right perspective and,

moreover, except this fact that the appellant took the deceased, one day prior to the recovery of the dead body of the deceased, there was nothing

before the learned trial court to convict and sentence the appellant. He further submits that only on the basis of suspicion, the appellant has been

convicted and sentenced by the learned trial court.

On the other hand, learned Additional PublicProsecutor for the State supported the impugned Judgment of conviction and sentence order, arguing

that almost all the witnesses including the wife and mother of the deceased very clearly stated that the deceased was taken away by the appellant,

one day prior to the recovery of his dead body, and, subsequently, the dead body of the deceased was recovered. He further submitted that the post-

mortem report of the deceased established this fact that the deceased was murdered as no water or mud was found on the lungs or other parts of

the dead body of the deceased and the doctor opined that the deceased did not die of drowining.

Having heard the rival contentions of the parties,we went through the evidence.

P.W.1 Jhapsi Devi is the mother, whereas P.W.2Hakiya Devi is the wife of the deceased. P.W.1 stated that the deceased was taken from his

house by the appellant. She further stated that on the next day, she got information that his son was killed and, after that, her another son and

daughter-in-law had gone to see the dead body of the deceased. She further stated that her daughter-in-law disclosed that the deceased had

deposited Rs.5000/- with the appellant.

P.W.2 Hakiya Devi stated almost similar statementbut admitted that the appellant had not come to take her husband in her presence, rather her

husband disclosed that the appellant had come to take him from his house. She admitted that she had not gone at the place of occurrence, rather her

brother-in-law had gone to the place of the occurrence and, after that, the dead body was brought to the village. She stated that her husband had

deposited ornaments and cash with the appellant with an object to purchase some land and, subsequently, whenever, her husband demanded his

money back from the appellant, the appellant refused to return the aforesaid amount and ornaments.

P.W.3 Rameshwar Ram is informant and fullbrother of the deceased. This witness stated that he came to know from the members of his family

that the appellant took away the deceased from his house and in the next morning, he got information from one Mathuri Paswan to this effect that his

brother died due to drowning and, after that, he went to the police station for giving information and his statement was recorded at the police station.

P.W.4 Bhola Ram is also the brother of thedeceased and stated that on the alleged date of the occurrence, the appellant had come to his home

and took the deceased. He further stated that, so far as the fact of depositing cash and ornaments with the appellant by the deceased is concerned,

the same was disclosed by his sister-in-law.

Almost, similar statement has been made by P.W.5 Jatadhari Ram, who happens to be the cousin brother of the deceased.

P.W.6 Dr. Kamal Kishore Das is doctor, whoconducted the post-mortem examination on the corpus of the deceased. This witness stated that no

external injury was found on the person of the deceased but, on dissection, brain was found lacerated and a big haemotoma was present on frontal

lobe and on parietal area. He also found that the lungs was congested but no water or mud was found inside the lungs. This witness opined that the

cause of death of the deceased was due to head injury and the deceased did not die due to drowning.

P.W.7 Jagat Lal Ram also stated that on thealleged date of the occurrence, the appellant had gone to the house of the deceased and took him.

After that, the deceased did not return to his home and in the next morning, one person informed him that the deceased Kusheshwar Ram died at

Daheriya Basti. This witness further stated that he reached to the place where the dead body of the deceased was lying. He stated that several

persons had assembled there and he saw the blood coming from the nose of the dead body of the deceased and he also noticed some minor injuries

on the person of the deceased. This witness happens to be witness on the inquest report.

P.W.8 Dhathuri Ram is tender witness and there isnothing in his deposition and so far as P.W.9 Shambhu Nath Choudhary is concerned, he

happens to be the formal witness. He proved the formal F.I.R. as Ext.4, written report, which had been given to the Officer Incharge, as Ext.5,

inquest report as Ext.6, case diary as Ext.7 as well as Ext.7/1. This witness fairly stated that he had no personal knowledge in respect of the present

case.

The defence also examined two defence witnessesand both the aforesaid defence witnesses stated that the deceased died of drowning but as we

have already noted that P.W.6 very clearly stated that the deceased died of head injury and, therefore, the testimony of the defence witnesses

appears to be doubtful. However, it is settled principle of law that the prosecution has to stand on its own leg and prosecution cannot take benefit of

weakness of the defence case and, therefore, it was upon the prosecution to prove its case beyond all shadows of reasonable doubt.

As we have already stated that some prosecutionwitnesses stated that on the alleged date of the occurrence, the deceased left his home in the

company of the appellant and, after that, the dead body of the deceased was recovered and except the aforesaid circumstance, there appears to be

nothing against the appellant. So far as the deposit of money and ornaments with the appellant by the deceased is concerned, the aforesaid story

came into picture, for the first time, when after post-mortem examination, this fact came to light that the deceased died of head injury and, moreover,

except the wife of the deceased, none of the witnesses claimed that the money and ornaments had been given to the appellant in their presence.

Furthermore, we find that the appellant fairly admitted in his statement, recorded under Section 313 of the Code of Criminal Procedure, that the

deceased had left his home in his company but he denied the story of committing the murder of the deceased. Therefore, it is an admitted position

that on 01.09.1988, the deceased left his home in the company of the appellant and except the aforesaid fact as well as this aspect of the matter that

the deceased died of head injury, the prosecution failed to prove any other circumstance, which could point out finger towards the appellant and,

therefore, in our view, the chain of circumstance pointing the guilt towards the appellant is incomplete and appellant deserves to get the benefit of

doubt.

On the basis of the aforesaid discussions, this criminal appeal is allowed and the impugned Judgment of conviction and sentence order are,

hereby, set aside and, accordingly, the appellant is acquitted of the charges giving the benefit of doubt to him. The appellant is on bail. He is

discharged from the liabilities of his bail bonds.

Let the copy of the first page and last page of thisJudgment be handed over to the learned Amicus Curiae for needful.