Ram Prasad Chaudhary And ORS v. State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (DB) No. 585 of 1998 ======================================================

1. Ram Prasad Chaudhary son of Pun Choudhary

2. Ram Sharan Chaudhary son of Pun Choudhary

3. Bhola Chaudhary son of Ram Prasad Chaudhary

4. Raja Ram Chaudhary son of Ram Prasad Chaudhary

5. Krishna Chaudhary son of Budhan Chaudhary

6. Bhola Paswan son of Sadhu Paswan

7. Nanhey Paswan @ Sheo Kr. Paswan son of Sadhu Paswan All resident of village Turka, P.S. Khizarsarai, District - Gaya. ... ... Appellants

Versus

The State of Bihar ... ... Respondent ====================================================== Appearance :

For the Appellant/s :

Mr. Shivendra Kumar Sinha, Adv.

Mr. Ranjeet Patel, Adv.

For the Respondent/s :

Mr. Ajay Mishra, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR and HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAKESH KUMAR) Date : 16-10-2017 Aforesaid seven appellants were convicted under Section 302 read with Section 34 & Section 201 of the Indian Penal Code and all the appellants were sentenced to undergo rigorous imprisonment for life under Section 302 read with Section 34 of the Indian Penal Code by learned 5th Additional Sessions Judge, Gaya (hereinafter referred to as the 'Trial Judge'). They were further sentenced to undergo rigorous imprisonment for 7 (seven) years for offence under Section 201

2/23 of the Indian Penal Code. Besides this, all the appellants were imposed fine of Rs. 1,000/- (one thousand) and in default of payment of fine, it was directed that all the appellants shall undergo further imprisonment for one month separately. All the sentences were directed to run concurrently.

2. The appellants were tried in Sessions Trial No. 69 of 1998/Sessions Trial No. 581 of 1992 (D.J.). Before proceeding further, at this juncture, it is necessary to incorporate that after registering F.I.R., vide Khizarsarai P.S. Case No. 108 of 1990 under Sections 302, 34, 201 of the Indian Penal Code, the police had initially submitted chargesheet on 03-12-1990 against one Sukhari Chaudhary @ Raghunandan Chaudhary. After submission of chargesheet, the learned Magistrate took cognizance of offence on 20-12-1990 and thereafter, vide order dated 06-11-1992, the case was committed to the court of sessions and as such, it was numbered as Sessions Trial No. 581 of 1992. Initially, charges were framed on 29-11-1994 against accused Sukhari Chaudhary for offence under Sections 302/34 and 201 of the Indian Penal Code and trial commenced. During evidence, a petition was filed on behalf of the prosecution under Section 319 of the Code of Criminal Procedure, 1973 (for short

3/23 "Cr.P.C.") and on 30-01-1996 appellants alongwith one Ramchandra Paswan were summoned to face trial with main accused i.e. Sukhari Chaudhary. Subsequently, after the appellants and one Ramchandra Paswan appeared, charges were framed on 19-02-1996 under Sections 302/34 and 201 of the Indian Penal Code. However, subsequently, accused Ramchandra Paswan died and as such, his name was deleted, vide order dated 19.02.1997, which is evident from the charge dated 19-02-1996.

3. The prosecution case in short is that on 22-08-1990 at 8:00 A.M., the Sub-Inspector of Police N. Kumar, who was officer incharge of Khizarsarai Police Station, recorded fardbeyan of Deonandan Yadav (P.W.-5). The fardbeyan was recorded in the house of informant, in which, he disclosed that on last Sunday i.e. 19-08-1990, his son Manoj Kumar with covillagers Bhola Chaudhary (appellant no. 3), Sukhari Chaudhary (accused since died), Raja Ram Chaudhary (appellant no. 4), Nanhey Paswan (appellant no. 7), Chote Lal Paswan (not made accused), Dinesh Chaudhary (not made accused), son-in-law of Ram Sharan Chaudhary (Krishna Chaudhary, appellant no. 5) with other persons had gone for fishing in Falgu river and thereafter, in the night at about 8:00

4/23 P.M., his son had taken dinner with him. Thereafter, his son went for fishing. The informant further stated that he was informed by his wife in the morning that she had seen that his son had gone with Bhola Chaudhary (appellant no. 3), Sukhari Chaudhary (since dead), son-in-law of Ram Sharan Chaudhary (Krishna Chaudhary, appellant no. 5). The informant further stated that his brother Suresh Yadav (P.W.-2) had also told him subsequently that Prasad Chaudhary (appellant no. 1) and Ram Sharan Chaudhary (appellant no. 2) had also gone towards the northern side of the village. Though, the informant asked all the family members about his son, then he was informed that his son had gone for fishing. He stated that for searching his son, he had visited his relatives' places also, but could not get any information.

Villagers were also searching for him. In the meanwhile, he heard rumour that in Falgu river on the eastern bank, a dead body was concealed in sand and one hand of the dead body was noticed. Thereafter, the informant with villagers on 21-08-1990 in the evening, went to Jolah Bigha near the river and found the dead body in the sand. They took out the dead body, which was headless. It was alleged that the deadbody was beheaded by sharp cutting weapon. They tried to locate the head, but it was not found.

5/23 the dead body to the house of the informant and it was kept beneath Butt (Banyan) tree on 21-08-1990. The informant disclosed that since it was night i.e. 8:00 P.M., he did not go to police station. He raised suspicion on his co-villagers namely Ram Prasad Chaudhary (appellant no. 1) and Ram Sharan Chaudhary (appellant no. 2). He further stated that there was land dispute with informant and Prasad Chaudhary (appellant no. 1). He stated that earlier Prasad Chaudhary had threatened him for dire consequences. On suspicion, the informant asserted that Prasad Chaudhary (appellant no. 1), Ram Sharan Chaudhary (appellant no. 2), Bhola Chaudhary (appellant no. 3), Sukhari Chaudhary (since dead), Krishna Chaudhary, appellant no. 5 (son-in-law of Ram Sharan Chaudhary, appellant no. 2) all connived with each other and beheaded the son of informant and to conceal the dead body, it was embedded in the Falgu river. He stated that after recovery of dead-body, all five accused persons had left their house.

4. After recording fardbeyan of informant (Deonandan Yadav), the Sub-Inspector of Police also got fardbeyan signed by Suresh Yadav, who has been examined as P.W.-2. After recording fardbeyan, on 22-08-1990 at 2:15 P.M., a formal F.I.R. was lodged against unknown and during

6/23 investigation, accusation against one accused namely Sukhari Chaudhary @ Raghunandan Chaudhary (since dead) was found true and thereafter, chargesheet was submitted. It is pertinent to mention here that after framing of charge against accused Sukhari Chaudhary, the prosecution had examined three witnesses namely Deventi Devi (P.W.-1), Suresh Yadav (P.W.-

2) and Malti Devi (P.W.-3) and thereafter, a petition on behalf of the prosecution was filed under Section 319 of the Cr.P.C. for summoning other accused persons, which include all the appellants, which was allowed and the appellants were summoned as accused and against them, charges were framed. Subsequently, during the trial of present case, the aforesaid three prosecution witnesses were re-examined.

5. In the present trial, altogether 9 (nine) witnesses were examined on behalf of the prosecution. Out of 9 witnesses, P.W. -1 (Deventi Devi), P.W.-2 (Suresh Yadav), P.W.-3 (Malti Devi), P.W.-4 (Gopal Prasad) and P.W.-5 (Deonandan Yadav, informant) have mainly deposed on the point that deceased was lastly seen with the accused persons and motive for the murder of Manoj Yadav was shifted to an allegation, as if, daughter of Ram Sharan Yadav (appellant no. 2), who was widow, was conceived with the illicit relation with

7/23 deceased Manoj Yadav, whereas, P.W.-6 Kanhai Yadav was not examined during investigation nor he was cited as witness in the chargesheet. P.W.-7 Dr. Arvind Prasad had conducted postmortem examination on the dead body of the deceased and P.W.-9 Ram Kishore Prasad was a formal witness, whereas, Sri Naresh Kumar, the investigating officer was examined as P.W.- 8.

6. Before proceeding further, it would be necessary to notice what informant had deposed during the trial. The informant Deonandan Yadav was examined as P.W.-5 and he stated that on the date of occurrence (i.e. Sunday) at 8:00 P.M., after taking meal, he had gone to sleep near machine. In the morning, when he returned to his house, he was informed by his wife that Sukhari Chaudhary (since dead), Bhola Chaudhary (appellant no. 3), Ram Prasad Chaudhary (appellant no. 1), Ram Sharan Chaudhary (appellant no. 2), Raja Ram Chaudhary (appellant no. 4), Krishna Chaudhary (appellant no. 5), Bhola Paswan (appellant no. 6) and Nanhey Paswan (appellant no. 7) had taken her son Manoj for fishing in the river and Manoj did not return. Then, he enquired from the accused persons, but they did not say anything. After three days, one dead body was found in the river, then he went there

8/23 and took out the dead body, which was head-less. He stated that in the finger of the dead-body, there was a ring and disclosed about other identification and injuries on the person of the dead body. On the next date, in the morning, police arrived and recorded his fardbeyan, which was read over to him and thereafter, he put his signature. This witness has proved his signature on the fardbeyan, which was got marked as Ext. 1. He stated that the police thereafter took possession of the body of the deceased. He stated that head of the deceased was found after ten days.

This witness, in his crossexamination in paragraph - 7, has stated that at the time of recovery of dead-body, Choukidar was there, even after ten days when head of deceased was found, which was found near the place from where dead body was found, Choukidar was again present. In paragraph - 9 of his cross-examination, he denied that at the time of giving statement in the police station for the first time he had not named any of the accused persons and denied that subsequently, he has falsely implicated other accused persons. This witness had also stated that in the morning when he returned to his house from machine, he was informed by his wife regarding the fact that his son had not come.

9/23

7. P.W.-1 Deventi Devi, wife of uncle of the deceased has stated that on the date of occurrence in night at 8:00 P.M., she was at her residence. Sukhari Yadav had called Manoj. Alongwith Sukhari Yadav, there were Bhola Chaudhary (appellant no. 3), Raja Ram Chaudhary (appellant no. 4), Prasad Chaudhary (appellant no. 1), Ram Sharan Chaudhary (appellant no. 2), Krishna Chaudhary (appellant no. 5), Bhola Paswan (appellant no. 6), Ramchandra Paswan (since dead) and Nanhe Paswan (appellant no. 7). She stated that while Manoj went outside the house, the accused persons told him to follow for fishing. Thereafter, Manoj alongwith them went for fishing. She stated that all the accused returned, but Manoj had not returned. After three days, dead body of Manoj was found in the river, which was beheaded.

In paragraph - 2 of her examination-in-chief, P.W.-1 stated that Ram Sharan's daughter Ramkali Devi was widow and she was having illicit relation with her Bahnoi (husband of her sister) Krishna Chaudhary (appellant no. 5), with whom she conceived. This witness further stated that on being told by Krishna Chaudhary (appellant no. 5), Ramkali had disclosed that she conceived due to illicit relation with Manoj. This witness stated that this was the reason for killing Manoj.

10/23 she reiterated that after Ramkali had become widow, occurrence had taken place and Ramkali was having illicit relation. She stated that this fact was not within the knowledge of male person of her family, rather female inmates were knowing this fact. In paragraph - 7 of her cross-examination, this witness has stated that she had provided meal to Manoj and while he was taking dinner, she heard that someone was calling him from outside. She stated that after hearing the call, Manoj went outside and alongwith Manoj, his father also went outside. It is required to be noticed that the father of the deceased Manoj was none else but P.W.

-5 Deonandan Yadav and in his deposition, he has categorically stated that he had not stated that he had seen anyone going with the deceased, rather in his evidence, he had stated that in night he had gone to the place of machine for sleeping and in morning, when he returned, he came to know by his wife that his son had not come and she also stated the name of accused persons, with whom, Manoj had gone. In paragraph - 9 of her crossexamination, this witness has made categorical statement that before recovery of dead body, none had gone to the police station nor any information was given to Choukidar or Dafadar before recovery of the dead body.

11/23 officer, who was examined as P.W.-8, has categorically stated that on 21-08-1990, the informant had given a written information regarding missing of his son. This witness i.e. P.W.-1 in paragraph - 11 of her cross-examination has stated that with the family of accused, her family was having no dispute, however; in the fardbeyan, informant had stated that there was land dispute with the accused persons and he had stated that the motive for the occurrence was also land dispute.

8. Similarly, P.W.-2 Suresh Yadav, brother of the informant, has stated that on the date of occurrence, in the night between 7 and 8, he was at his residence and in his presence, Sukhari Chaudhary (since dead), Bhola Chaudhary (appellant no. 3), Raja Ram Chaudhary (appellant no. 4), Ram Sharan Chaudhary (appellant no. 2), Krishna Chaudhary (appellant no. 5), Ramchandra Paswan (since dead), Bhola Paswan (appellant no. 6) and Nanhey Paswan (appellant no. 7) had come and called Manoj, thereafter, Manoj went outside the house and thereafter, accused persons asked him to go for fishing, but he did not return till next morning. This witness stated that in the morning, he enquired from the accused persons also, but they did not say anything. Three days thereafter dead body of Manoj was found in the river, which

12/23 was taken out. It was beheaded dead body and 10 days thereafter, the head of the dead body was found. The reason for the murder of Manoj was explained that Ramkali, daughter of Ram Sharan Chaudhary (appellant no. 2) had become widow 2-3 years back. She was having illicit relation with Krishna Chaudhary (appellant no. 5) and with that relation, she conceived. He stated that while their parents started enquiry, on dictate of Krishna (appellant no. 5), she disclosed the name of Manoj and this was the reason that occurrence had taken place. In paragraph - 6 of his cross-examination, he stated that in the night of the date of occurrence, after taking dinner, he slept and in morning, he went near the baandh and did not see anyone. He stated that he returned after attending natural call and he came to know that Manoj had not returned.

Thereafter, he alongwith others started searching him. He stated that Choukidar was also informed. He stated that in the evening, Deonandan (informant, P.W.-5) had not gone to police station and Deonandan went to police station after three days, that too after recovery of the dead body and alongwith him Choukidar was also there.

13/23 thereafter, the investigating officer had recorded station diary entry and also flashed information to nearby police station regarding his missing. This witness has stated that Deonandan was his own brother and his wife Deventi Devi, who was examined as P.W. - 1, has made categorical statement that with the family of accused persons and family of informant side, there was no dispute.

9. Almost, in similar manner, P.W.-3 Malti Devi, wife of informant has stated in her examination-in-chief and P.W.-4 Gopal Prasad in his evidence has stated that on the date of occurrence at 3:00 P.M., he was playing football alongwith Sukhari Chaudhary (since dead), Krishna Chaudhary (appellant no. 5), Ramchandra Paswan (since dead), Bhola Paswan (appellant no. 6), Raja Ram Chaudhary (appellant no. 4), Dinesh Chaudhary (not examined) and other. Thereafter, Sukhari Chaudhary asked them for fishing in the river and thereafter, Manoj also went with them. Subsequently, they returned to village. In the evening at 8:00 P.M., Sukhari Chaudhary, Krishna Chaudhary, Nanhey Paswan, Ramchandra Paswan and others called Manoj for fishing and in the next morning, mother of Manoj told that her son had not returned. In the evening on 21-08-1990 at about 5:00 P.M., there was

14/23 rumour of noticing a dead body in the river and thereafter, the dead body was found in the river. In paragraph - 3, this witness stated that on Monday, Dinesh Chaudhary (not examined) had told him that Sukhari Chaudhary (since dead), Bhola Paswan (appellant no. 6), Ramchandra Paswan (since dead) and Krishna Chaudhary (appellant no. 5) had come from northern side and Sukhari & Ramchandra were carrying fasuli in their hand. This witness in paragraph - 13 of his cross-examination has stated that he had not disclosed name of any of the accused to the police officer, nor he had said regarding finding of the dead body in the river.

10. Kanhai Yadav, though was not cited in the chargesheet as witness, was examined as P.W.-6 and he too stated that at 6:00 P.M., one Dinesh Chaudhary (not examined) had told him that he had come from the Baandh and 11:00 P.M. Sukhari, Bhola, Ramchandra Paswan and Krishna Chaudhary had come from the northern side and Sukhari & Krishna were carrying fasuli in their hand.

11. Dr. Arvind Prasad, who conducted post-mortem examination on the dead body, was examined as P.W.-7. On 22-08-1990, he was posted in the Forensic Department as Associate Professor in A.N.M.C.H., Gaya and on the same date

15/23 at 11:30 AM, he conducted post-mortem examination and found following ante-mortem injury:- "Body was devoid of head and a part of neck. Injury at the neck was by sharp cutting anteriorly up-to the posterior part. The neck was found cut at whole circumference. The margins were regular. The posterior margin was found lacerated with a fag of skin about 2" long and its center projecting upwards. The injury was found at the level of T3 vertebra. All the intervening stratus including muscles and vessels & nerves were cut through and through. Blood clots were present inside the wound. The T3 vertebra was found fractured at its body, lungs was found congested.

Time elapses since death - within 48 hours approx.

The cause of death is shock & haemorrhage produced by injury to the neck by a heavy sharp cutting weapon."

Further, P.W.-7 the doctor has proved the postmortem examination report, which was marked as Ext. '2'.

12. P.W.-9 Ram Kishore Prasad is a formal witness and as such, there is no need to discuss his evidence in detail,

16/23 save and except the fact that he had proved the protest/complaint petition, which was marked as Ext. '6'.

13. The investigating officer Sri Naresh Kumar was examined as P.W.-8. He proved the fardbeyan, which was marked as Ext. '3', formal F.I.R. as Ext. '4' and inquest report as Ext. '5'. He also stated that he visited the place of occurrence and in his evidence, nothing has been indicated as to whether he found any evidence connecting with the occurrence at the place, from where, dead body was recovered. He stated that dead body was found on a cot in the house of the informant and it was headless dead body, which was sent for post-mortem examination. Ofcourse, inquest report, which has been marked as Ext. '5', was signed by witnesses, to the reasons best known to the prosecution, none of the inquest witnesses were examined in the present case, as prosecution witness. P.W. 8, the investigating officer in paragraph - 8 of his cross-examination has stated that on 21.08.90 on the basis of written information of informant Deo Nandan Yadav, he had made Station Diary Entry No. 349 and in the said information, informant had disclosed regarding missing of his son.

14. Sri Shivendra Kumar Sinha, learned counsel for appellants, after placing entire evidences, has argued that it was

17/23 hardly a case of circumstantial evidence without proof of connecting chain. He submits that the fardbeyan of the informant itself appears to be doubtful and fabricated, since after missing of the son of the informant, the informant himself had given a written information to the police regarding the missing of his son and thereafter, the investigating officer had made station diary entry, vide Sanaha No. 349 dated 21-08-1990. He submits that had it been a case of 'last seen' of the deceased with the appellants, the informant would have certainly mentioned their name in the petition, which was given to the police regarding missing of his son, however; the dead body was recovered on the same date i.e. 21-08-1990 in the evening. On the next date i.e.

22-08-1990, in a well-planned manner, the informant disclosed the name of appellants in his fardbeyan, as if, deceased had gone with the appellants and lastly seen with the appellants. He submits that though, the investigating officer in his evidence has made categorical statement that informant had given written information to the police on 21-08-1990 regarding missing of his son, purposely, the informant or other prosecution witnesses had deposed during trial that before recovery of dead body, the police was never informed.

18/23 regarding the involvement of accused persons. It has also been argued that though, headless body was found in the Falgu river, without informing police, to the reasons best known to the informant, they themselves carried the dead body from bank of the Falgu river to their house and thereafter, police was informed and fardbeyan was got recorded. He submits that it is consistent case of the prosecution that dead body was found and recovered on 21-08-1990 in the evening, still fardbeyan was got recorded on the next date in the morning i.e. on 22-08-1990 at 8:00 A.M. He submits that the police station was not far away and it was only about 8 km. from the place of occurrence.

Neither immediately after noticing the dead body lying in the river police was informed nor after the dead body was carried and brought to the house of the informant on 21-08-1990 the police was informed and subsequently, to the reasons best known to the prosecution or informant, on the next date, fardbeyan was got recorded, in which, appellants' names were shown, as if, they were seen lastly with the deceased. He has further argued that to show completion of the chain, the prosecution introduced two witnesses i.e. P.W.-4 and P.W.

19/23 those witnesses had stated that they were informed by one Dinesh Chaudhary (not examined), however; to the reasons best known to the prosecution, the said witness Dinesh Chaudhary was withheld. He was not examined or he was not produced for his examination. According to Sri Sinha, such evidence may not be taken notice by this Court. According to him, there was complete absence of completion of the chain and in case of circumstantial evidence, unless and until entire chain is proved, it would not be advisable to held anyone guilty. He submits that in the present case, there is no chain to establish the involvement of either of the appellants and as such, it has been argued that judgment of conviction and sentence is liable to be set aside.

15. Sri Ajay Mishra, learned Addl. Public Prosecutor has opposed the appeal and by way of referring to the evidence of P.W.-1, 2, 3 and 5, he has stated that witnesses are consistent on the point that the deceased was lastly seen with the appellants and as such, the learned Trial Judge has not committed any error in convicting and sentencing the appellants.

16. Besides hearing learned counsel for the parties, we have also perused entire evidence on record. After going

20/23 through the same, it is evident that the F.I.R. was lodged against unknown. Ofcourse, in the fardbeyan, indication, given by the informant, was that the deceased was seen lastly with the appellants. During investigation, the prosecution found material against one accused namely Sukhari Chaudhary @ Raghunandan Chaudhary (since dead) and thereafter, chargesheet was submitted on 03-12-1990 against Sukhari Chaudhary @ Raghunandan Chaudhary. After framing of charge, trial commenced and it was numbered as Sessions Trial No. 581 of 1992. After examination of three prosecution witnesses, a petition was filed on behalf of the prosecution under Section 319 of the Cr.P.C.

for summoning the appellants and other accused to face trial with Sukhari Chaudhary, which was allowed and thereafter, the appellants appeared and charges were framed against them. During their examination, again three witnesses, who were earlier examined, were reexamined. Besides them, the prosecution examined other witnesses.

21/23 of daughter of appellant no. 2 namely Ramkali Devi. A story was developed as if Ramkali Devi, who was widow, had developed illicit relation with deceased Manoj and due to that reason, she had conceived and this was the reason for eliminating the son of the informant and during the trial, the prosecution witnesses had come out with a case as if there was no land dispute with the appellants' side or any other dispute. So the motive was shifted from land dispute to illicit relation. Moreover, evidence has come that the deceased went missing and thereafter, on 21-08-1990, the informant had given a written information to the police regarding missing of his son and thereafter, station diary entry, vide Sanaha No. 349 dated 21.08.1990, was recorded.

The investigating officer in his deposition has stated that after recording sanaha entry, he also intimated nearby police station regarding missing. This fact was purposely withheld by the prosecution witnesses and this is the reason that prosecution witnesses have said that prior to recovery of the dead body, police was not informed. This creates serious doubt on the prosecution case.

22/23 recorded and in the fardbeyan, name of appellants were shown as if they were seen lastly with the deceased. The prosecution case is also doubted on the fact that though P.W.-4 and P.W.-6 have tried to develop a case that after the occurrence, accused persons were seen carrying some weapons and they were informed by one Dinesh Chaudhary, the said Dinesh Chaudhary was not got examined by the prosecution. Besides this, there are other infirmities i.e. non-examination of either of the witnesses of the inquest report, non-examination of the Choukidar regarding whom it was stated that Choukidar was present while for the first time head-less dead body was recovered and after 10 days when head was recovered, again Choukidar was present and to the reasons best known to the prosecution, the Choukidar was not examined as prosecution witnesses.

17. Considering the major inconsistency and lack of chain to establish circumstances, the Court is of the opinion that the prosecution has completely failed to prove its case beyond all reasonable doubt and as such, the judgment of conviction and sentence is required to be interfered with.

18. Accordingly, the judgment/order of conviction and sentence dated 20-11-1998 and 21-11-1998 respectively passed

23/23 in Sessions Trial No. 69 of 1998/581 of 1992 (D.J.) by the learned 5th Additional Sessions Judge, Gaya is, hereby, set aside.

19. The appeal is allowed. Since all the appellants are on bail, they are directed to be discharged from the liability of their bail-bonds.

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