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2022 Supreme(Pat) 241
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, ARVIND SRIVASTAVA, JJ.
Sugriv Choubey S/o Fulan Choubey – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) Nos. 144, 338 of 2012
Decided On : 18-05-2022
Advocate Appeared:
For the Appellants : Mr. Vikram Deo Singh, Mr. Sada Nand Roy.
For the Respondent: Mr. Abhimanyu Sharma.
For the Informant : Mr. Kumar Sunil.
Headnote:
Indian Penal Code, 1860 – Sections 302/34 and 341 – Arms Act, 1959 – Section 27 – Murder and wrongful restraint – Common intention – Life sentence – There are contradictions in evidence of witnesses and same are not believable – In order to show complicity of all accused persons, different accused persons have been shown to have fired at different witnesses – It is general behaviour that when anybody sees an injured person then he tries to provide him first aid or takes him to hospital, but in present case informant, who is son of deceased, did not even try to touch his injured father – Investigating Officer did not find any blood at place of occurrence – All witnesses have given evidence improving their statement – All witnesses as also Investigating Officer are silent on the point as to when and in whose presence Fardbeyan was recorded – Witnesses also accept that parties are on litigating terms from before – Documentary evidences adduced on behalf of defence also supports this fact – Evidence on record do not support the findings arrived at by trial court – Prosecution has miserably failed to bring home charges levelled against appellants – Impugned judgment of conviction and order of sentence set aside and appellants acquitted of charges levelled against them. (Paras 24 to 28)
Per Ashwani Kumar Singh, J. (Assenting View)
Indian Penal Code, 1860 – Sections 302/34 and 341 – Arms Act, 1959 – Section 27 – Murder and wrongful restraint – Common intention – Life sentence – Sequence of events make it manifest that much before institution of FIR, Investigating Officer had inspected place of occurrence, prepared inquest report, examined informant, received written report from him and sent body of deceased to Sadar Hospital for post-mortem examination – FIR is a suspicious document – In case, informant was knowing name of accused persons who had committed offence, he would have certainly disclosed it to Investigating Officer at first instance when police had visited place of occurrence – However, in inquest report prepared by Investigating Officer, name of any of miscreants who had participated in commission of crime has not been mentioned – Prosecution has also failed to prove place of occurrence – There is a considerable doubt about occurrence having taken place at place of occurrence, as disclosed by prosecution because no blood could be found at place of murder – In a case of this nature where information reached at police station regarding occurrence within an hour and Investigating Officer promptly reached at site as distance was only 4 kilometres, no reason why empties of cartridges and blood were not recovered from place of occurrence – In view of material contradictions in testimonies of eye witnesses with their previous statements made before Investigating Officer during investigation, serious doubt is created on their presence at place of occurrence when incident took place. (Paras 12 to 18 and 24)
JUDGMENT :
ARVIND SRIVASTAVA, J.
1. Heard Mr. Vikram Deo Singh, learned counsel for the appellants, Mr. Abhimanyu Sharma learned Addl. Public Prosecutor appearing for the State being assisted by Mr. Kumar Sunil, learned counsel for the informant.
2. These appeals are directed against the judgment of conviction dated 18.01.2012 and the order of sentence dated 24.01.2012, passed by Shri Harendra Nath Tiwary, Sessions Judge, Kaimur at Bhabhua in Sessions Trial No. 311 of 2010, whereby and whereunder the all appellants have been convicted under sections 302/34 and section 341 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 15,000/- each and in default of payment of fine they have been further directed to undergo rigorous imprisonment for six months. The appellant, Sugriv Chaubey has further been convicted under section 27 Arms Act and has been sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 2,000/- and in case of default of payment of fine he has been directed to undergo rigorous imprisonment for three months. Both the sentences in respect of Sugriv Chaubey has been directed to run concurrently.
3. These appeals were heard earlier and were disposed of by this Court by the judgment of acquittal dated 10th April, 2019. The informant assailed the aforesaid judgment before the Hon’ble Supreme Court in Cr. Appeal Nos. 10-11 of 2020 arising out of S.L.P. (Crl.) No. 5740-5741 of 2019 and the Hon’ble Supreme Court by order dated 7th January, 2020 set aside the aforesaid judgment of acquittal and remanded the matter to this Court for disposal afresh.
4. Pursuant to the aforesaid order of remand of the Hon’ble Supreme Court, these appeals have been heard afresh.
5. The prosecution case, in brief, is that PW-5 Sushil Kant Pandey gave his written statement before the Officer-in-Charge, Bhabhua P.S. stating therein that on 22.05.2010 he alongwith his father had gone towards south of his house for plucking vegetables and as soon as he reached near the lane, all the accused persons namely, Sugriv Chaubey, Angad Chaubey, Bajrangi Chaubey, Fulan Chaubey and Guptnath Chaubey, all resident of village Gorhan at present residing at Patel Chowk, Bhabhua as well as Disco Pandey, who were standing there from before, and as soon as his father reached at the aforesaid place, Bajrangi Chaubey instigated on which Sugriv Chaubey having katta in his hand caused injury on the head and in the temple of his father namely, Nathuni Pandey. After receiving injury, his father fell down. Angad Chaubey is said to have kicked the deceased from his foot and further instigated to kill the informant. In the meantime, the informant managed to escape and went inside the house. After hearing the sound of firing the villagers came there and accused persons fled away. The motive of the occurrence is said to be dispute regarding the deceased witnesses against the accused persons.
6. On the basis of the aforesaid written statement, Bhabhua P.S. Case No. 217 of 2010, dated 22.05.2010, was registered under section 341, 302, 506/34 of the Indian Penal Code and Section 27 of the Arms Act.
7. The police took up the investigation of the case and after investigation submitted charge sheet on 30.06.2010 against all the six accused persons showing Disco Pandey as absconder. In this case cognizance was taken on 05.07.2010 and the case was committed to the Court of Sessions on 29.07.2010.
8. Charges were framed in this case on 30.08.2010 against all the appellants to which the appellants pleaded not guilty and claimed to be tried.
9. During trial, the prosecution has examined altogether 7 witnesses. PW-1/Namuna Tiwari, PW-2/Lal Bachan Pathak, PW-3/Rabindra Nath Pathak, PW-4/Ram Nandan Ram, PW-5/Sushil Kant Pandey (informant of the case), PW-6/Chandrachud Rai (Investigating Officer of the case) and PW-7/Dr.
