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2003(2) Supreme 523
SUPREME COURT OF INDIA
(From Patna High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Suresh Chaudhary etc. -Appellants
versus
State of Bihar -Respondent
Criminal Appeal No. 193 of 2002
With
Criminal Appeal No. 673 of 2002
Decided on 5-3-2003
Counsel for the Parties :
For the Appellants : Kanihaiya Priyadarshi, Praneet Ransan, S.Y. Diwkar, Upendra Mishra, Y.P. Singh, C. Sidharth and Mukesh K. Sharma, Advocates.
For the Respondent : Saket Singh and B.B. Singh, Advocates.
Held : We have perused the judgments of the two courts below as also the evidence on which the courts below have relied to base a conviction. It is an admitted fact that the sole eye-witness who has supported the case of the prosecution is PW-8 who is the brother of deceased Rajendra Chaudhary and cousin brother of Chamru Chaudhary. The other person who was sleeping with the deceased on that day was PW-10, Baleshwar Chaudhary who has not supported the prosecution case, therefore, it has become incumbent on us to consider and assess the evidence of PW-8 rather cautiously to come to the conclusion whether the courts below were justified in relying on this evidence of PW-8 either with corroboration or even without the same, as observed by the High Court. (Para 8)
Held thereafter : We are of the opinion that the evidence of PW-8 who is a close relative and an interested witness as also that of the investigating officer PW-13 which is full of contradictions, cannot be relied upon to base a conviction. (Para 13)
(ii) Practice and Procedure of Criminal Trial in appeal-Appellants acquitted-Whether benefit of acquittal be extended to non-appealing convicted accused before Courts below? (Yes). (Para 14)
Held : For the reasons stated above, these appeals succeed, the judgment and conviction recorded by the courts below are set aside and the appeals are allowed. The appellants as well as Sona @ Sonwa Choudhary who was appellant in Crl. A. No.88 of 1995 before the High Court of Patna shall also be set at liberty forthwith, if not required in any other case. (Para 15)
JUDGMENT
Santosh Hegde, J.-The two appellants in these appeals along with two other accused persons were charged for committing offences punishable under Section 302 IPC and Section 27 of the Arms Act for having committed triple murder of Shivnandan Mahto, Chamru Chaudhary and Rajendra Chaudhary on the night intervening between 10th and 11th October, 1992 within the jurisdiction of Islampur Police Station. In the said case, one of the accused persons by name Saryug Paswan was absconding. The trial of the said accused person was separated from the other accused persons. Learned Sessions Judge, Nalanda, after trial found the 3 accused persons including the two appellants herein guilty of the offences charged and sentenced them to undergo imprisonment for life for an offence punishable under Section 302 IPC. He also imposed a sentence of 7 years RI for offence punishable under Section 27 of the Arms Act, and directed the sentences to run concurrently. Against the said judgment and conviction, the appellants preferred appeals before the High Court of Patna which dismissed the appeals, confirming the judgment and sentence imposed on the appellants.
2. Out of the 3 accused persons who have been convicted by the courts below, accused Suresh Chaudhary has preferred Crl.A. No. 193/2002 before us and accused Padum Mali has preferred Crl.A. No. 673/2002. We are told that the accused Sona alias Sonwa Chaudhary has not preferred any appeal against his conviction by the courts below, we are also told that during the pendency of the appeal, the absconding accused Saryug Paswan surrendered and his trial was held before the learned Sessions Judge, Nalanda, who after considering the evidence led by the prosecution came to the conclusion that the prosecution has not established the case against him and accordingly acquitted him of the charges. Now only two of the accused are in appeal before us.
3. The prosecution case stated briefly is that on 11.10.1992 the 3 deceased persons along with Bijendra Chaudhary (PW-8), who is the brother of one of the deceased Rajendra Chaudhary and cousin of the other deceased Chamru Chaudhary were sleeping with 3rd deceased Sheo Mahto and another witness Baleshwar Chaudhary (PW-10) on the roof of the pump-house belonging to deceased Sheo Mahto. At that time, the accused persons armed with revolvers and rifles came to the roof of the pump-house and opened indiscriminate firing consequent to which Sheo Mahto and Chamru Chaudhary died on the spot while Rajendra Chaudhary suffered severe wounds on his head while PWs.8 and 10 escaped from being injured in the firing. It is the prosecution case that after the assailants went away, PWs.8 and 10 went to the village and informed the people there including their relatives about the incident and brought them to the place of the incident and carried Rajendra Chaudhary who was injured, to a local doctor by name Dr. Birendra Babu (not examined) who on examining him, declared him dead. Thereafter, it is stated that PWs.8 and 10 along with other relatives and villagers brought the dead body of Rajendra Chaudhary to the Police Station and gave a complaint which was signed by Bijendra Chaudhary (PW-8), and which was reduced to writing by Ramashankar Singh (PW-13), who was then the SHO of Police Station Islampur, who also investigated the case in hand. The prosecution then states that the said Investigating Officer, PW-13, went to the spot and conducted the inquest on the two dead bodies lying there and thereafter conducted the inquest on the dead body of Rajendra Chaudhary at the Police Station. In the meantime, he also tried to trace the accused persons and was able to arrest Sona Chaudhary on 11.10.1992 while other accused persons were not immediately available to be arrested. On completion of the investigation, a chargesheet was filed by which time the other accused persons except Saryug Paswan were arrested. In this trial the prosecution examined 2 eye-witnesses, namely, PWs.8 a
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