Ram Naresh Chaubey and Others vs State of Bihar

Narendra Narayan Singh, J.—This appeal is directed against the judgment of conviction and order of sentence dated 3-5-1989 passed in Sessions Trial No. 393 of 1982 by which 7th Addl. Sessions Judge, Rohtas at Sasaram convicted all three appellants under Sections 307/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years thereunder.

The prosecution case, as mentioned in the fardbeyan (Ext. 2) of informant Gauri Shanker Choubey (P.W. 5) at Kargahar Hospital at 9.30 a.m. on 8-11-79 was that then at 7.00 p.m. in the previous night, he was returning to his village home after irrigating his paddy field and he reached near a turning point towards east of the canal bridge, these appellants and Sarju Choubey (since dead) surrounded him. It was further alleged that under orders of Naresh Choubey and Sarju Choubey to finish him, informant Gauri Shanker Choubey stalled running away but appellant Ramjee Choubey fired a shot from his gun which hit his back and head as a result of which Gauri Shanker Choubey fell down and then - again another firing was made which missed its target. It was also claimed that after that it is verified that Gauri Shanker Choubey was dead, these appellants fled away towards their home. On alarm raised by the informant villagers arrived there who took him to Kargahar hospital for treatment where his fardbeyan was recorded. It was claimed that the informant identified the appellants in moonlit night.

On the basis of the aforesaid fardbeyan (Ext. 2) Kargahar P.S. Case No. 5 dated 8-11-79 was registered against the appellants and the police after due investigation submitted charge-sheet and after cognizance and commitment the appellants were put on trial and were convicted as aforesaid.

The defence as gathered from the suggestions put to P.Ws. and the statements of appellants u/s 313 of the Cr, P.C. was that they were falsely implicated in this case due to enmity.

Altogether six witnesses were examined by the prosecution in support of its case cut of whom P.W. 4 Ram Ekbal Rai and P.W. 6 Surendra Dubey are formal witnesses. P.W. 5 is the informant Gauri Shanker Choubey, P.W. 1 is Ayodhya Choubey, the brother of the informant, P.W, 2 Anant Choubey is brother-in-law of the informant and P.W. 3 Khobhari Choubey is a co-villager of P.W. 2, In this case the Investigating Officer and the doctor who examined the injuries on the person of Gauri Shanker Choubey (P.W. 5) have not been examined. The learned trial Court has discussed the evidence of P.W. 5 in paragraph 10 of its judgment.

The learned Counsel for the appellants contended that the date of occurrence was Tritiya and as such at about 10.00 p.m. There should have been no sufficient light to identify the appellants. I do not find any merit in this contention as known persons could be identified in dark nights if they came near the identifier. However, I find weight in the argument of the learned Counsel for the appellants that in course of fleeing away, it would not be possible for the persons running away to identify as to who fired at him from behind. So far as other witnesses P.Ws, 1, 2 and 3 are concerned, none of them are eye-witnesses of the alleged firing and they simply stated that when they reached there they, in the way to the P.O., saw those appellants coming with arms. Enmity in this case is admitted and no independent witness with the examined in support of the prosecution case.

It was also argued that though P.W. 6 Surendra Dubey proved the injury report (Ext. 3) issued by the Doctor Sri K.P. Rai but the same cannot be looked into as by formal proof of the injury report its contents cannot be looked into and this injury report was not even tendered u/s 294 of the Cr. P.C. It was also argued on behalf of the appellants that non-examination of the I.O. is material in this case as attention of the witnesses drawn towards certain contradictions which cannot be proved, in absence of the examination of the I.O.

In the facts and circumstances of the case and the entire discussion made above, J find and hold that it was fit case in which the appellants may be given benefit of doubt. Accordingly, this appeal is allowed and the order of conviction and sentenced passed against the appellants is hereby set aside and they are released from the liabilities of their bail-bonds.