Sudama Choudhary S/o Laxman Choudhary vs The State Of Bihar

These appeals arise out of the judgment and order dated

29.01.2013 and 31.01.2013 respectively passed by Adhoc

Additional Sessions Judge III, Aurangabad in Sessions Trial No.

214 of 2011 / 38 of 2011 whereby the trial court convicted the

appellants under Section 302 / 34 of the Indian Penal Code and

sentenced them to undergo R.I. for life with fine having default

clause. The sentences so imposed on them were directed to run

concurrently.

The informant of this case is a village Chowkidar

(P.W.4) who in course of duty got an information regarding

murder of the deceased in the house of one Laxman Chaudhary. He

reported the matter to the S.H.O of Daudnagar Police Station over

mobile and proceeded to take stock of the occurrence. The Police

also reached at the place of occurrence and recorded his Fardbeyan

Ext. 1 wherein it is stated that the widow of deceased has been

murdered by her family members. The husband of the deceased

had died two years ago and she along with her four minor children

was residing with her father-in-law, Laxman Chaudhary. Her

father-in-law had given 1 '' bigha more land in the share of the

deceased as per the decision of the Panches. The elder brother of

her husband was nursing grudge for which family quarrel used to

take place. The informant has further stated that on account of

family dispute, the appellants (the elder brother and his two wives)

committed murder and sacked the dead body with intention to

conceal it. In the meanwhile, the neighbours caught all the three

accuseds. On the basis of Fardbeyan, the present case bearing

Daudnagar P. S. Case No. 12 of 2011 was registered under Section

302 / 34 of the Indian Penal Code. The Investigating Officer, in

course of investigation, seized the dead body as per seizure list

(Ext. 4), prepared inquest report (Ext. 6) and sent the dead body for

post mortem examination. He arrested all the three appellants as

per arrest memo (Ext. 5). Upon conclusion of the investigation and

finding the allegation true, the charge-sheet was laid against the

appellants whereupon cognizance was taken and the case, on

commitment, came on the file of the trial Judge. The trial Judge

after hearing both sides framed charges against the appellants. The

charges so framed were read over to the appellants who pleaded

their innocence.

To further the prosecution case, the prosecution

examined seven witnesses besides exhibiting documents. P.W. 1

Pooja Kumari and P.W. 2 Laxman Chaudhary are the daughter and

the father-in-law respectively of the deceased. P.W. 3 Ramjanam

Chaudhary is the co-villager of the deceased. P.W. 4 is the

Chowkidar and informant of this case. P.W. 5 Kirtu Rawani is a

witness of seizure list. P.W. 6 (Dr. Raj Kumar Prasad) is the

Doctor, who conducted autopsy on the deceased and submitted

post mortem report (Ext. 2). P.W. 7 Syed Ali Ahmed is the

Investigating Officer, who after investigation laid charge-sheet. On

appraisal of the evidence adduced by the prosecution, the learned

trial judge found the charge proved beyond shadow of reasonable

doubt and convicted the appellants in the manner stated above.

We have heard Mr. Baxi S.R.P. Sinha, the counsel for

the appellants and Mr. S.N. Prasad, APP for the State.

While criticizing the impugned judgment, Mr. Baxi has

urged that this is a case based on circumstantial evidence. There is

absolutely not a single eye-witness to support the prosecution case.

The appellants have been implicated only on account of being

family members with whom a family dispute was allegedly going

on. The daughter and the father-in-law of the deceased have not

supported the prosecution case showing the complicity of the

appellants in the murder of deceased. The prosecution has failed to

prove the manner of occurrence as also the place of occurrence. In

the evidence of the witnesses, it has come that the deceased was

residing with her father-in-law Laxman Chaudhary. The appellants

were residing separately having no concern either with Laxman

Chaudhary or the deceased. The informant is not an eye-witness

and has given a hearsay account in the Fardbeyan. The prosecution

has failed to prove the chain of circumstance whereunder the

appellants have been held guilty.

The learned APP for the State, on the other hand,

supported the impugned judgment. He submits that the prosecution

has proved the case by convincing and reliable evidence. The

occurrence took place within the four walls of the joint residential

house of the appellants and the deceased. The law enjoins the

appellants to explain the circumstances in which the dead body

was sacked after her murder. The appellants were at inimical terms

on account of the land dispute. All the appellants were present and

they were apprehended by the local people and subsequently

handed over to the custody of police. The prosecution has proved

the case beyond shadow of doubt and the court below rightly

convicted the appellants.

In view of the submissions made by both the parties, we

shall now examine the evidence on record to find out as to whether

the prosecution has been able to prove the guilt of the appellants.

The homicidal death of deceased is not much in dispute.

The informant, on getting information, reached at the place of

occurrence and saw the dead body sacked in a bag and blood was

flowing through the drain of the residential house of the appellants.

The Investigating Officer (P.W. 7) immediately reached at the

place of occurrence at 10.30 A.M. and recorded Fardbeyan of the

informant. He seized the dead body packed in a blood stained

gunny bag and a Dabia (sharp cutting heavy weapon) from the

house of Laxman Chaudhary. He sent the dead body for post-

mortem examination. The Doctor (P.W. 6) conducted the post

mortem examination on the same day at about 4.45 P.M. In course

of evidence, he has proved the post mortem report as Ext. 2

wherein he has found and mentioned the following ante mortem

injuries:-

"(1) Incised wound of size 1 1/2" x 1/2" x 1/2" above the right clavicle. (2) Incised wound of size 1 1/2" x 1/2" x 1/2" above the left clavicle. (3) Incised wound semi lunar shape at the upper part of neck at the level of thyroid cartilage extending from the left angle of mandible to the right ear label transacting skin, neck muscles, great vessels and nerves, Trachea esophagus. Neck is attached to the skull only posteriorly with the skin and cervical vertebrae.

Cause of death:- The above mentioned injuries nos. (1), (2) and (3) led to hemorrhage shock cardio respiratory failure and finally death. Time elapsed since death to postmortem done- within 24 (twenty four) hours."

The doctor has further stated that the injuries were

caused by sharp cutting weapon and it may be ''chura''. The

evidence of Doctor and the informant as also the post mortem

report clearly establish that the death was homicidal caused on the

date and time of the occurrence as alleged by the prosecution.

The evidence of P.Ws. 1 and 2, who are minor daughter

and father-in-law of the deceased, is consistent on the point of

homicidal death of deceased in their house. But, none of them has

stated about the manner of assault caused by any of the appellants.

These two witnesses and the appellants reside in the same house.

In the evidence of the informant as well as the

Investigating Officer, it has also come that deceased and the

appellants were residing in the same house having one common

Aagan in the middle. The Investigating Officer (P.W.7) at

paragraph 6 has stated about the topography and location of the

room and Aagan of the appellants. The witnesses P.Ws. 1 and 2

were declared hostile as they refused to narrate manner of assault

committed by the appellants and denied their statement given

before Police.

In cross-examination, P.W. 2 has admitted that the

deceased was his widow daughter-in-law, who was residing

separately in the house. He has stated that he had given 1 '' bigha

excess land in partition and she was murdered in the room in which

she was residing. This witness was joint in mess with the deceased

and her children and he was separate from his second son and his

two wives i.e. the appellants.

From the evidence of P.W. 2, this much is established

that after the death of husband, the deceased along with her minor

children was residing with her father-in-law quite separate from

the affairs of the appellants and she was given 1 - bigha more

land in her share by her father-in-law. P.W. 3, Ramjanam

Chaudhary is the resident of the same village and in his evidence,

he has stated about the hearsay account of the occurrence by

stating that the appellant Sudama Choudhary committed the

murder of deceased. He visited the place of occurrence and saw the

dead body sacked in a bag kept at the door of the appellant Sudama

Choudhary. A large number of person had assembled at the place

and the appellants were taken into custody by Police. He has

further stated that the weapon of assault was recovered by Police

from the place of occurrence. In cross-examination, he has stated

that the appellants and the deceased had common Aagan and they

were residing in the same house by fencing the Aagan. P.W. 4 is

the informant (Choukidar) on whose information, Police reached

there and recorded his statement. In his Fardbeyan, he has stated

that at the time of his arrival, the father-in-law of deceased was not

at the place of occurrence and the police arrested all the three

appellants from their house. The defence at the time of cross-

examination has given suggestion that some unknown persons

snatched her ornaments and committed murder of the deceased.

The defence has further given another suggestion that the

miscreants killed the deceased believing her to be a witchcraft-

practitioner (Daien). P.W. 5 is also one of the co-villagers of

deceased in whose presence, seizure list (Ext. 4) was prepared. In

his evidence, he has stated that he had affixed thumb impression on

the seizure list. This witness has been declared hostile by the

prosecution as he did not support the prosecution case on the point

of seizure. The Investigating Officer (P.W. 7) in course of his

evidence has stated that he immediately visited at the place of

occurrence on getting information about the murder in the house of

the appellants. He noticed that profused blood was flowing in the

drain coming out from the house of the appellants and the villagers

were catching hold of all the three appellants at the time of his

arrival. He has further stated that the Farbdyan of the informant

was recorded by Brajesh Kumar in his presence and it was

endorsed by him. The endorsement has been marked as Ext. 1/1.

He has further proved the formal F.I.R. as Ext. 3. He seized a

bloodstained Dab (weapon) and the dead body sacked in a bag in

the house of Laxam Chaudhary. The seizure was made in presence

of the appellant Sudama Choudhary and a copy of which was

given to him under the signature of appellant Sudama Choudhary.

He had arrested all the three appellants and sent the dead body for

post mortem examination after preparing inquest report (Ext. 6).

He has recorded the statement of witnesses and also the defence

version who disclosed that after committing murder of deceased,

sacked the dead body in a bag. The Investigating Officer at

paragraph no. 6 has narrated about the location of the rooms inside

the residential house of the appellants and the deceased. He has

stated that the house in question is grilled from front side having an

entry to the ''Angan'' through a verandah. There are two rooms i.e.

one each side of angan towards south and north. It is not in dispute

that the appellants and the family of deceased were occupying their

rooms separately in the same residential premises having one

entry. The presence of all the appellants in the house is also not in

dispute. The evidence on record establishes the fact that the

neighbours caught hold of all the appellants and handed over to the

custody of police on their arrival at 10.30 A.M. The daughter of

deceased P.W.1 has turned hostile and has denied her presence in

the house at the relevant time. Another family member (P.W. 2)

father of appellant (Sudama Choudhary) has also turned hostile but

in evidence he has admitted the murder of deceased in the

residential house. He has stated that at that time he had gone to the

field. It is not difficult for us to find reasons for turning P.W. 1 and

P.W. 2 hostile. It shall be dealt with later.

Thus from the evidence on record, it is established

beyond any shadow of doubt that there was none in the residential

house except the appellants, the deceased and her minor children

when she was done to death inside the house.

Now, we proceed to consider as to who is / are

responsible for the homicidal death of the deceased.

In the evidence of prosecution witnesses, we find that

both the family members P.Ws. 1 and 2 have turned hostile and

denied about their presence in the house. The defence has not

asserted about their presence in the house also. In their cross-

examination, there is no suggestion either on their presence or

absence in the house at the relevant time. The defence has given

suggestion to the informant that unknown miscreants snatched

ornaments and committed her murder. Their another suggestion to

the informant is that the criminal killed the deceased believing her

as a Daien (witchcraft practitioner). We do not find any force in

the suggestion of appellants that the deceased was killed by any

miscreants or criminal. It cannot be assumed for a moment that any

miscreant after committing murder of deceased will pack the dead

body in a bag and keep at the gate of one of the rooms of

appellants. The appellants have not narrated about any incident in

their house at relevant time in their statement given under Section

313 Cr.P.C. They have simply pleaded their innocence.

In the evidence of Investigating Officer (P.W. 7), it is

found that he immediately (within an hour) reached at the place of

occurrence and recorded the statement of informant and the

witnesses. As the daughter (P.W. 1) and father-in-law (P.W. 2) of

deceased were declared hostile by the prosecution, the prosecution

drew attention of P.Ws. 1 and 2 towards their statement given

before Investigating Officer under Section 161 Cr.P.C. The

Investigating Officer (P.W. 7) at paragraph 7 has stated that the

witnesses P.Ws. 1, 2 and 3 had stated about the complicity of the

appellants in the murder of the deceased. They had stated that

female members had quarreled in the morning and the appellant

Sudama Choudhary had uttered to teach her lesson and thereafter,

all the appellants committed her murder. The daughter and father-

in-law of deceased at the time of their evidence were aged about 15

years and 75 years respectively. There is no other members in the

family except the appellants and three more minor children of the

deceased. From the records, we find that all the appellants are in

custody since the date of occurrence. The only male member

Laxman Chaudhary (the father-in-law of deceased) was aged about

75 years at that time and he was carrying liabilities of all the minor

children on his head. At the age of 75 years, when there was none

to look after him or the minor children of deceased, the conscious

of P.W. 2 (Laxam Chaudhary) would have shaken and he might

have decided not to get the appellants convicted. The daughter of

the deceased (P.W.1) was minor and was supposed to act and

depose as per wishes of her grandfather, the only person to take

care of her and other children who had turned orphan. In such

circumstance, it cannot be ruled out that the P.Ws. 1, 2 and 3 did

not support the prosecution case only to save the appellants from

the ordeal.

Thus, from the evidence emerging from the record, the

following circumstances emerge against the appellants:-

(i) The husband of deceased died just 2 years ago

earlier from the occurrence leaving behind minor

children.

(ii) The father-in-law had given 1 - bigha excess

land in the share of deceased which was the bone

of contention.

(iii) The appellants were residing separately from the

deceased and her father-in-law (Laxam

Chaudhary) in the same residential house having

common Angan and one entry.

(iv) The appellants used to quarrel with the deceased.

(v) The deceased was done to death in the day light

at 9 A.M. by a sharp cutting weapon within the

residential house.

(vi) There was none in the house except the

appellants.

(vii) The dead body was found concealed packed in a

gunny bag and kept in one of the rooms.

(viii) The villagers assembled immediately and caught

all the appellants.

(ix) The informant and Investigating Officer saw

blood flowing through a drain coming out from

their house.

(x) Blood stained weapon was recovered from the

house of the appellants.

(xi) The female appellants had quarrelled with the

deceased preceding to the occurrence and the

appellant (Sudama Choudhary) had uttered to

teach her lesson.

(xii) There is no evidence on record to show that any

miscreant entered into the house, snatched her

ornaments and killed her for any reason(s).

(xiii) Perusal of the numbers of ante mortem injuries

mentioned in autopsy report read with statement

of P.W 6 and packing the dead body in a bag

establish beyond reasonable doubt that the crime

could not have been committed by one person

alone.

(xiv) The appellants have failed to disclose as to how

deceased had died which was especially within

their knowledge.

The above chain of circumstances suggest and

establish the fact that it was none else than the appellants who in

furtherance of their common intention committed murder of the

deceased. In this regard, we would like to refer the rulings of the

Hon''ble Apex Court reported in Jagdish Vs. State of Haryana

(2010)1 S.C.C. (Cri.) 21 wherein it has been observed "...... the

appellant and the deceased family members were the only

occupants of the room and it was therefore incumbent on the

appellant to have tendered some explanation in order to avoid any

suspicion as to his guilt."

All the appellants were present in the house. There was

no other except the deceased and her minor four children. So, the

burden lies on the appellants to explain the circumstances leading

to her homicidal death in view of Section 106 of Evidence Act. In

such type of case like the present one, the Apex Court in Trimukh

Maroti Kirkan Vs. State of Maharashtra, 2006 (10) S.C.C. 681

held as under:-

"Where an offence like murder is committed in

secrecy inside a house, the initial burden to establish

the case would undoubtedly be upon the prosecution,

but the nature and amount of evidence to be led by it

to establish the charge cannot be of the same degree

as is required in other cases of circumstantial

evidence. The burden would be of a comparatively

lighter character. In view of Section 106 of the

Evidence Act, there will be a corresponding burden on

the inmates of the house to give a cogent explanation

as to how the crime was committed. The inmates of

the house cannot get away by simply keeping quit and

offering no explanation on the supposed premise that

the burden to establish its case lies entirely upon the

prosecution and there is no duty at all on an accused

to offer any explanation."

On consideration of submissions made on behalf of

both sides and analyzing the evidence on record, we find that the

prosecution has established the chain of circumstances against all

the appellants which only prove their guilt beyond shadow of

doubt.

For the reasons stated above, we do not find any merit

in these appeals. Both the appeals are dismissed.