Harishankar Chaoudhary @ Hulas ... vs The State Of Bihar
2022 Latest Caselaw 2990 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                          CRIMINAL APPEAL (DB) No.55 of 1995
        Arising Out of PS. Case No.-16 Year-1979 Thana- SIWAN MUFFASIL District- Siwan
     ======================================================

1. Sheo Bachan Choudhary, son of Gullu Choudhary, Resident of Village -

Markaw ke Tola , P.S.- Siwan (M), Distt.- Siwan. (abated vide order dated 05.04.2022).

2. Harishankar Choudhary @ Hulas Choudhary, Son of Late Sheo Bachan Choudhary, Resident of Village - Markaw ke Tola, P.S.- Siwan (M), Distt.- Siwan.

3. Madan Choudhary, Son of Late Sheo Bachan Chaudhary, Resident of Village

- Markaw ke Tola , P.S.- Siwan (M), Distt.- Siwan.

... ... Appellants.

Versus The State of Bihar

... ... Respondent.

====================================================== Appearance :

For the Appellants : Mr. Rajesh Kumar Singh, Senior Advocate.

Mr. Prashant Kumar, Advocate For the State : Dr. Mayanand Jha, A.P.P.

===================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE A. M. BADAR)

Date : 20-05-2022

This appeal is filed by the appellant/accused no.1

Sheo Bachan Choudhary and his two sons, namely, appellant/

accused no.2 Harishankar @ Hulas Choudhary and

appellant/accused no.3 Madan Choudhary, challenging the

Judgment and Order dated 12.04.1995 and 17.04.1995

respectively passed by the learned Additional Sessions Judge-I,

Siwan, in Sessions Trial No.77/84 arising out of the Police

Station-Siwan Muffasil Case No.16(11)/79. By this impugned Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

Judgment and Order, appellant/accused no.1 Sheo Bachan

Choudhary came to be convicted of the offence punishable

under Section 302 of the Indian Penal Code for committing

murder of Ramanand Choudhary. He was sentenced to suffer

imprisonment for life. By the same impugned Judgment and

Order, his son Appellant/accused no.2 Harishankar Choudhary

alias Hulas Choudhary also came to be convicted of the offences

punishable under Sections 302, 324 and 323 of the Indian Penal

Code for committing murder of Ramanand Choudhary, for

causing hurt by a dangerous weapon to P.W.5 Saryug

Choudhary and for causing simple hurt to P.W.8 Sawaru

Choudhary. He was sentenced to suffer imprisonment for life,

rigorous imprisonment for two years and rigorous imprisonment

for one year on each count respectively. Similarly, by the said

Judgment and Order, appellant/accused no.3 Madan Choudhary

came to be convicted of the offences punishable under Sections

302 read with 34 and 307 of the Indian Penal Code for

committing murder of Ramanand Choudhary and for attempting

to commit murder of P.W.8 Sawaru Choudhary. He was

sentenced to suffer imprisonment for life as well as rigorous

imprisonment for four years on each count respectively. The

learned trial court had directed that the substantive sentences Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

imposed on the appellants/accused shall run concurrently. For

the sake of convenience, the appellants shall be referred to in

their original capacity as "the accused".

2. Facts in brief leading to the prosecution of the

accused persons projected from the police report can be

summarized thus:

(a). First informant/P.W.8 Sawaru Choudhary along

with his father P.W.5 Saryug Choudhary used to reside at

village-Markan Ka Tola falling under the jurisdiction of Police

Station-Siwan Muffasil in District-Siwan.Ramanand Choudhary

(since deceased) was brother of First Informant P.W.8 Sawaru

Choudhary and son of P.W.5 Saryug Choudhary. P.W.5 Saryug

Choudhary and deceased Ramanand Choudhary were working

as the Train Driver and the Second Fire Man respectively with

the Indian Railways. Deceased Ramanand Choudhary and his

wife P.W.4 Anjoria Devi were also residing with P.W.5 Saryug

Choudhary. P.W.3 Indrasan Choudhary, who is brother of P.W.5

Saryug Choudhary, was also residing at the same village-

Markan Ka Tola.

(b). First Informant/PW 8 Sawaru and his deceased

brother Ramanand had purchased 8 Katha of land at Markan Ka

Tola about one year back from Abdul Manan and Abdul Mastan Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

of village-Hathora. Appellant/accused no.1 Sheo Bachan

Choudhary was also desirous of purchasing of very same land

but he could not. Therefore, he was harbouring an ill will

against the prosecuting party. Due to this enmity, at about 11.00

A.M. of 18.11.1979, accused no.1 Sheo Bachan Choudhary and

his sons accused no.2 Harishankar Choudhary and accused no.3

Madan Choudhary dashed at the door of P.W.5 Saryug

Choudhary while being armed with spear, Bhujali (sickle) and

stick. Then accused no.3 Madan Choudhary gave two blows of

spear on right side of back of P.W.8 Sawaru Choudhary.

Accused No.2 Harishankar @ Hulas Choudhary gave blows of

stick on neck and waist of P.W.8 Sawaru Choudhary.

Thereafter, accused no.2 Harishankar alias Hulas Choudhary

went back to his house and brought a Bhujali (sickle). At that

time, P.W.5 Saryug Choudhary and Ramanand Choudhary (since

deceased) came there. Accused No.2 Harishankar alias Hulas

Choudhary then gave blows of Bhujali (sickle) on hands of

P.W.5 Saryug Choudhary. Accused No.1 Sheo Bachan

Choudhary and his son/accused no.2 Harishankar alias Hulas

Choudhary then gave blow by spear and Bhujali (sickle) on

neck, abdoment and chest of Ramanand Choudhary. Ramanand

Choudhary suffered serious injuries in this murderous assault. Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

The incident of assault on the members of the prosecuting party

came to be witnessed by villagers, namely, Briksha Sah, P.W.2

Motilal Sah, Nagina Sah and Sheo Bachan son of Khilawan

Choudhary.

(c). Injured P.W.5 Saryug Choudhary, P.W.8 Sawaru

Choudhary and Ramanand Choudhary were then taken to the

Sadar Hospital, Siwan, for medical treatment, where they were

treated by P.W. 9 Dr. D. N. Shrivastava from 12:45 PM of

18.11.1979. P.W. 3 Indrasan- brother of P.W. 5 Saryug

accompanied them to the hospital.

(d). P.W.10 Ramadhar Singh, Police Sub-Inspector

of the Siwan Muffasil Police Station received the O.P.D. slip

from the Sadar Hospital, Siwan, at about 02.15 P.M. of

18.11.1979 mentioning admission of the injured at the said

hospital for medical treatment. By taking entries in the station

diary, P.W.10 Ramadhar Singh reached the hospital at about

03.00 P.M. of 18.11.1979 itself. At the said hospital, he recorded

the F.I.R. (Ext.4) lodged by P.W.8 Sawaru Choudhary. His

statement under Section 161 of the Code of Criminal Procedure

was also recorded thereat. P.W.10 Ramadhar Singh noted

injuries on persons of P.W.3 Indrasan Choudhary, P.W.5 Saryug

Choudhary and Ramanand Choudhary. He prepared injury Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

reports, which were collectively marked as Ext.5. Then P.W.10

Ramadhar Singh recorded dying declaration of Ramanand

Choudhary. Another dying declaration of Ramanand Choudhary

was also got recorded by the Judicial Magistrate on 18.11.1979.

At 6:10 PM of 18.11.79 itself Ramanand Choudhary succumbed

to the injuries and at about 07.20 P.M., P.W.9 Dr. D.N.

Shrivastava of Siwan Hospital informed this fact to P.W.10

Ramadhar Singh. Accordingly, P.W.10 Ramadhar Singh

instructed the concerned to add Section 302 of the Indian Penal

Code in the case diary of the subject crime.

(e). All three accused persons were also found to be

admitted in the very same hospital at that time by P.W. 10

Ramadhar Singh, P.S.I. Therefore, he recorded statement of

accused no.1 Sheo Bachan Choudhary and accused no.2

Harishankar alias Hulas Choudhary and thereafter arrested all

three accused persons at the hospital itself and kept them under

the surveillance of a police constable, as P.W. 9 Dr. Shrivastava

informed him that it would be dangerous to take them out of the

hospital without completing their medical treatment.

(f). At about 10.00 P.M. of 18.11.1979, P.W.10

Ramadhar Singh, visited village-Markan Ka Tola. The spot of

the incident was shown to him by P.W.4 Anjoria Devi. He Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

inspected the same and seized soil stained with blood from the

spot vide seizure memo (Ext.12). Thereafter, routine

investigation followed. Statements of witnesses came to be

recorded. Report of post-mortem examination of the dead body

of Ramanand Choudhary as well as injury certificates of the

injured were collected. On completion of investigation, the

accused persons were chargesheeted.

(g). The learned trial court framed the charge for the

offences punishable under Sections 302, 302/34, 307 and 324 of

the Indian Penal Code against the accused persons and

explained the same to them. They pleaded not guilty and

claimed trial.

(h). In order to bring home the guilt to the accused,

the prosecution has examined in all 11 witnesses whereas

defence has examined Kedar Nath Dubey, for proving by

identifying the handwriting as well as the signatures of P.W.10

Ramadhar Singh, Sub Inspector on the case diary and relevant

documents of the cross case. Following are the witnesses

examined by the prosecution:

(i). P.W.1 Hira Lal Choudhary-the witness, who accompanied the injured to the Hospital at Siwan.

(ii). P.W.2 Moti Lal Prasad-an eye witness, who Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

turned hostile to the prosecution.

(iii). P.W.3 Indrasan Choudhary-brother of injured P.W.5 Saryug Choudhary and uncle of deceased Ramanand Choudhary.

(iv). P.W.4 Anjoria Devi, widow of Ramanand Choudhary-an eye witness to the incident.

(v). P.W.5 Saryug Choudhary-an injured eye witness and father of deceased Ramanand Choudhary.

(vi). Phuljharia Devi, wife of Indrasan Choudhary-a witness tendered for cross-examination by the defence.

(vii). Sanehi Devi, wife of P.W.5 Saryug Choudhary and mother of deceased Ramanand Choudhary.

(viii). P.W.8 Sawaru Choudhary the first informant as well as an injured witness and brother of deceased Ramanand Choudnary.

(ix). P.W.9 Dr. D.N. Shrivastava, Medical Officer of Sadar Hospital, Siwan, who treated the injured prosecution witness, the accused and conducted post-mortem examination on the dead body of Ramanand Choudhary.

(x). P.W.10 Ramadhar Singh, Police Sub Inspector and the Investigating Officer.

(xi). P.W.11 Kamla Choudhary-a witness examined to prove agreements (Exts.15 and 15/1) in respect of land purhcased from Abdul Manan by the prosecuting party.

(i). The defence of the accused persons was that of Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

total denial and false implication in the case by the prosecuting

party in order to save themselves from the counter case initiated

vide the F.I.R. (Exts.B and C) of Police Case 17(11)/1979 dated

18.11.1979 lodged by appellant/accused no.1 Sheo Bachan

Choudhary against the members of the prosecuting party.

(j). After hearing the parties, by the impugned

Judgment and Order, the learned trial court was pleased to

convict the appellants and to sentence them as indicated in the

opening paragraph of this Judgment.

3. During the pendency of the instant appeal,

appellant/convicted accused no.1 Sheo Bachan Choudhary died

in the year 2010 and, as such, the instant appeal qua said

appellant no.1 Sheo Bachan Choudhary stood abated vide order

dated 05.04.2022 passed by this Court.

4. We heard Mr. Rajesh Kumar Singh, the learned

Senior Counsel appearing for the appellants at sufficient length

of time. By taking us through the entire records and

proceedings, he argued that the appellants and the deceased

appellant/accused no.1 Sheo Bachan Choudhary were, in fact,

admitted in the Sadar Hospital, Siwan, on 18.11.1979 itself and

they were injured during the course of the same incident. They

were arrested while being admitted at the hospital by P.W.10 Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

Ramadhar Singh. Injuries suffered by accused persons during

the course of the incident were not at all explained by the

prosecution. On the contrary, as argued by the learned Senior

Counsel appearing for the appellants, all the prosecution

witnesses tried to hide the fact of suffering injuries by the

accused persons during the course of the same incident. All

witnesses examined by the prosecution are stating before the

court that no injuries were suffered by the accused persons

when, in fact, the injured witnesses in this case as well as all the

accused persons were examined by P.W.9 Dr. D.N. Shrivastava

on the very same day of happening of the incident. It is further

argued that the prosecution has suppressed the genesis of the

incident. The F.I.R. lodged by P.W.8 Sawaru Choudhary makes

it explicitly clear that the incident took place at the door of the

house of P.W.8 Sawaru Choudhary and his father P.W.5 Saryug

Choudhary whereas when the witnesses entered in the witness

box after 9 years of the incident, had deposed that the incident

took place at some other place. According to the learned Senior

counsel appearing for the appellants, this is deliberately done by

the prosecution witnesses only because P.W.4 Anjoria Devi had

shown the actual spot of the incident to P.W.10 Ramadhar

Singh, P.S.I. at about 10.00 P.M. of 18.11.1979 itself which was Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

not as mentioned in the F.I.R. Hence, according to the learned

Senior counsel appearing for the appellants, the prosecution

witnesses have modulated their versions to suit the record of the

investigation. It is further argued that version of prosecution

witnesses shows that the spot of the incident was near the Neem

tree which was in the vicinity of the house of the accused

persons. The accused persons had suffered serious injuries at

the time of the incident and this fact shows that the prosecuting

party was aggressor. It is argued that the prosecuting party had

used guns for causing wounds to accused persons. As stated by

the learned Senior counsel appearing for the appellants, the

defence has proved the F.I.R. of the counter cases and has also

placed on record and proved the case diary of the counter case

containing the notes of inspection of the spot of incident from

the defence witness. It is argued that therefore, the accused

persons are entitled for acquittal.

5. The learned Senior counsel appearing for the

appellants in order to buttress the submissions so advanced has

placed reliance on the Judgments in the matters of Mohar Rai

& Another vs. The State of Bihar reported in AIR 1968 SC

1281, Lakshmi Singh vs. The State of Bihar reported in AIR

1976 SC 2263, The State of Rajasthan vs. Madho & Ors. Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

Reported in AIR 1991 SC 1065, Darshan Singh vs. The State

of Punjab & Ors. reported in AIR 2010 SC 1212, Salim Zia

vs. The State of Uttar Pradesh reported in AIR 1979 SC 391.

6. As against this, the learned A.P.P. supported the

impugned Judgment and Order by arguing that the spot of the

incident is one and the same as the incident took place in a small

area and, therefore, it cannot be said that the prosecution has

suppressed the genesis of the incident. It is further argued by

the learned A.P.P. that as the impugned Judgment and Order is

based on acceptable evidence, the same is not liable to be

disturbed by this Court.

7. We have carefully considered the submissions so

advanced and we have also perused the records and the

proceedings including oral as well as documentary evidence

adduced by the parties. We have also carefully gone through the

Judgment cited by the learned Senior counsel appearing for the

appellants.

8. It hardly needs to point out that it is the bounded

duty of the prosecution to place before the Court the whole set

of relevant facts in order to enable the Court to arrive at the

correct conclusion. Way back in the year 1974, in the matter of

Jamuna Chaudhary and others Vs. State of Bihar 1974 Crl. Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

L.J. 890, the Hon'ble Apex Court has held thus in this regard in

paragraphs-11 and 12 of its Judgment, relevant portion of which

is reproduced hereunder:

"11. The duty of the Investigating Officers is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth. It is apparent that the prosecution witnesses had tried to omit altogether any reference to at least the injuries of the appellant Ramanandan because there was a cross case in which such an admission could have been made use of to support the prosecution in that case. Dukhharan, however, made a very feeble and obviously untruthful attempt to account for the injuries of Ramanandan by saying that he had snatched a pharsa from one of the members of the crowd and had started swinging it around. He could not, however, state whether any one was injured by it. He even stated that he did not recognise the man from whom he had snatched the pharsa..........."

12. As neither the prosecution nor the defence have, in the case before us, come out with the whole and unvarnished truth, so as to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents lay or how one or more incidents took place in which Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

so many persons, including Laldhari and Ramanandan, were injured, courts can only try to guess or conjecture to decipher the truth if possible. This may be done, within limits, to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case."

9. With this let us not review the entire evidence

adduced by the prosecution in order to ascertain whether the

conviction and the resultant sentence imposed on the appellants

is justified. There is no embargo on the Appellate Court in re-

appreciating the evidence for the purpose of ascertaining

whether it is proved that the accused has committed the offence

alleged against him. In the case in hand, it is alleged that the

accused had committed murder of Ramanand Choudhary and

had attempted to commit murder of Prosecution Witness No.8

Sawaru Choudhary and caused injuries to the prosecution

witnesses by dangerous weapons. Let us therefore at the outset,

ascertain whether deceased Ramanand Choudhary died

homicidal death on 18.11.1979.

10. P.W.3 Indrasan Choudhary-uncle of the

deceased Ramanand Choudhary, P.W.4 Anjoria Devi-widow of

deceased Ramanand Choudhary, P.W.5 Saryug Choudhary- Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

father of the deceased Ramanand Choudhary and P.W.8 Sawaru

Choudhary-brother of the deceased Ramanand Choudhary, have

unanimously stated that Ramanand Choudhary died because of

injuries sustained by him in the incident on 18.11.1979 itself.

P.W.10 Ramadhar Singh, P.S.I., the Investigating Officer of this

case, has testified that he visited the Sadar Hospital Siwan at

about 03.00 P.M. of 18.11.1979 and found that alongwith

others, Ramanand Choudhary was also admitted in injured

condition at the said hospital. This witness claimed to have

recorded the dying declaration of Ramanand Choudhary

(Ext.10) and further stated that he received information of death

of Ramanand Choudhary from P.W.9 Dr. D.N. Shrivastava. As

per version of P.W.9 Dr. D.N. Shrivastava on the next day, i.e.,

19.11.1979, he conducted post-mortem examination on the dead

body of Ramanand Choudhary and found following

antemortem injuries on the dead body of Ramanand

Choudhary:

I. One incised wound 4" x 1" x 2 ½" cutting the IX rib nipple region and liver on the right side. Chest on the back injury in liver of side of 3" x 1/2" x 1" right chest cavity full of blood.

II. One incised wound 4" x 3/4" x 1½" over the inter-scapular region.

III. One penetrating injury 3/4"x1½" at the root of neck right side back part.

Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

IV. One bruise injury over the back of left for arm below elbow.

V. One abrasion injury below right knee over right leg 3/4" x 3/4".

P.W.9 Dr. D.N. Shrivastava has further stated that

Ramanand Chouduary died due to hemorrhage and shock due to

the injuries noticed on his dead body at about 6.10 P.M. on

18.11.1979 i.e. on the day of incident itself.

The defence has not disputed this evidence adduced

by the prosecution as well as the factum of death of Ramanand

and as such with this evidence, which is also corroborated by

the contemporaneous report of post-mortem examination, the

prosecution has proved that deceased Ramanand Choudhary

died homicidal death.

11. According to the prosecution case, P.W.5

Saryug Choudhary and his son P.W. Sawaru Choudhary were

injured in the incident in question which took place at about

11.00 A.M. of 18.11.1979 at the door of their house at village-

Markan Ka Tola. P.W.3 Indrasan Choudhary, according to the

prosecution case, was not injured in the incident in question but

he was found to be admitted at the Sadar Hospital, Siwan, in

injured condition by the Investigating Officer. As per evidence

of P.W.10 Ramadhar Singh, the Investigating Officer, at about Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

02.15 P.M. of 18.11.1979, he got the O.P.D. slip from the Sadar

Hospital, Siwan, informing that three injured persons are

admitted to the said hospital for medical treatment. He deposed

that then he visited the said hospital at about 03.00 P.M. of

18.11.1979 and apart from recording the F.I.R. lodged by P.W.8

Sawaru Choudhary, he also got recorded statement under

Section 161 of the Code of Criminal Procedure of the said

witness. He also claimed to have inspected the injuries on the

person of P.W.5 Saryug Choudhary, P.W.3 Indrasan Choudhary

and deceased Ramanand Choudhary and about preparation of

report Ext. 5 in that regard. Let us therefore put on record what

attending Medical Officer says about the injuries on the victims

of the alleged offence.

12. On this backdrop, it is in evidence of P.W.9 Dr.

D.N. Shrivastava of the Sadar Hospital, Siwan, that he had

medically examined P.W.5 Saryug Choudhary at about 12.45

P.M. of 18.11.1979 and had noted the following injuries on his

person:

I. One incised wound curved on the back of left had extending from wrist to the base of middle and ring finger 4" x 3/4" x cutting the extensor tender of the middle finger and opening the III metacarpi phalanxial joint cavity. Caused by sharp weapons like-Bhujali-Grievous in nature.

Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

II. One incised wound back of the right forearm 2½" x ½" about 3" below elbow, caused by sharp weapon like Bhujali simple in nature.

III. Incised wound curved across back of the left arm above elbow 4 4/3" x 2½"

bone deep caused by sharp weapon like Bhujali-opinion reserved.

IV. One lacerated wound left side of head 1/4" x 1/4" muscle deep, simple in nature caused by hard blunt weapon like lathi.

P.W.9 Dr. D.N. Shrivastava further testified that on

the same day, thereafter, he examined P.W.8 Sawaru Choudhary

and found the following injuries on his person:

I. Incised wound two inches a crossed the right side of back 2" x 1/2" x 1/2" and 2¼" x 1/2" x 1/4" one above the other. Opinion reserved till X-ray caused by sharp weapon like bhala.

II. Three bruise ¼" x ¼" right side of back in the lower region, caused by hard blunt like lathi- simple in nature. III. Complain on pain neck and waist.

As per version of P.W.9 Dr. D.N. Shrivastava, at

about 01.30 P.M. of 18.11.1979, he examined P.W.3 Indrasan

Choudhary and noted the following injuries on his person:

I. One lacerated wound 1" x 1/4" muscle deep over the for hand in the middle near the hair line.

II.One lacerated injury ½" x 1/4" muscle deep over the right thumb on the Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

middle side. Both caused by hard substance like bricks-simple in nature.

This evidence shows that soon after the incident

which allegedly took place at 11 A.M. of 18.11.1979 at Markan

Ka Tola, the injured were admitted to the Sadar Hospital,

Siwan, prior to 12.45 P.M. and were receiving attention of P.W.

9 Dr. Shrivastava since then.

13. During the course of cross-examination of P.W.9

Dr. D.N. Shrivastava of the Sadar Hospital, Siwan, we have

also noticed that on the very same day at the same time,

deceased appellant/accused Sheo Bachan Choudhary as well as

accused no.2 Harishankar Choudhary alias Hulas Choudhary

and accused no.3 Madan Choudhary were also admitted to the

Sadar Hospital, Siwan, in injured condition and P.W.9 Dr. D.N.

Shrivastava had also examined them on 18.11.1979 itself.

Following facts are deposed by P.W. 9 Dr. Shrivastava.

Deceased appellant/accused Sheo Bachan

Choudhary was examined by P.W.9 Dr. D.N. Shrivastava at

01.35 P.M. of 18.11.1979 at the Sadar Hospital, Siwan, and he

was found to be having following injuries:

(1). One lacerated wound on over the head right side anterior 1½" x ¼" x Scalp Deep.

(2). One lacerated wound ½" x ¼" x Muscle Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

Deep over the upper side of head posteriorly.

(3). Diffuse swelling back of right forearm below elbow 2" x 2".

(4). Three bruises across the back 4" x ½", 3" x ¼" and 3" x ½" .

(5). One lacerated wound ¾" x ¼" x muscle deep in the front of left leg in the middle.

(6). One lacerated injury ½" x ¼" over the back on the right side near the waist.

The Medical Officer opined that all the injuries

simple, caused by hard and blunt substance.

Accused no.2 Harishankar Choudhary alias Hulas

Choudhary was examined by P.W.9 Dr. D.N. Shrivastava at

01.45 P.M. of 18.11.1979 at the Sadar Hospital, Siwan, and he

was found to be having following injuries:

(1). Small lacerated wound-11 in number of size 1/10" x 1/10" to ¼" x ¼" and 1/4" deep. Powder burn not clearly detected. All in area of 3" x 2½" on the right side of chest below and lateral to nipple. Appears to be caused by firearm, simple in nature. (2). One lacerated wound left side of forehead 1" x ½" muscle deep, also 2" above the front of left ear.

(3). One lacerated wound in the middle of head ¼" x ¼" x muscle deep. Simple caused by the hard and blunt object.

(4). Diffuse swelling on the back of both legs 2"

x 2", 2½" x 2½" -Simple caused by hard and blunt object.

Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

(5). Circular lacerated wound in the back in the middle with impression of teeth. Simple in nature.

(6). One lacerated wound ½" x ¾" near the waist left side of back-simple caused by the hard and blunt object.

Accused No.3 Madan Choudhary was examined by

P.W.9 Dr. D.N. Shrivastava at 01.50 P.M. of 18.11.1979 at the

Sadar Hospital, Siwan, and he was found to be having following

injuries:

(1). Small lacerated wound-13 in number of size 1/10" x 1/10" to ¼" x ¼" and skin deep to 1/4". Powder burn not clearly detected. All in area of 3" x 2¾" of outer side of right arm. Appears to be caused by firearm. Simple in nature.

(2). One lacerated injury ¼" x 1/6" muscle deep on back of right hand near the base of middle finger-simple in nature caused by the hard and blunt object.

(3). Two lacerated wounds over the head on the left side 1½" x ¼" x muscle deep. One on the right side 1" x ¼" x muscle deep-both simple caused by the hard and blunt object. (4). One lacerated wound over the head anteriorly in the middle ¼" x 1/6" x muscle deep, simple in nature caused by the hard and blunt object-Age- within 6 hours.

Thus, it is seen that the members of the prosecuting

party as well as the accused persons were simultaneously

admitted to the Sadar Hospital, Siwan, for medical treatment of Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

the injuries suffered by them in the incident in question. This

makes it crystal clear that the accused persons had also

sustained injuries in the same incident. There is no possibility

of they suffering injuries in some other incident in such a small

gap of time nor such plea is coming from the side of the

prosecution for explaining injuries on the accused persons. On

the contrary, the documentary evidence at Ext.B which is the

FIR of the counter case registered at the instance of the

deceased appellant Sheo Bachan indicates that the accused

herein were injured in the same incident. Ultimately that FIR

had culminated in filing of the charge sheet and registration of

the criminal case.

14. Thus we have noted that one of the members of the

prosecuting party died in the incident and two of them viz.

P.W. 5 Saryug Choudhary and P.W.8 Sawaru Choudhary were

injured in the incident. As against this, from the evidence

emerging on record, we have also noted that all three accused

persons were also injured at the same time and on the same day,

i.e., at about 11:00 AM of 18.11.1979 and they were

simultaneously admitted to the Sadar Hospital, Siwan, for

medical treatment. It needs to be noted that the principle of

criminal jurisprudence requires that the prosecution must Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

establish its case by clear, cogent and convincing evidence. No

matter how diabolic is the crime, the burden always remains on

the prosecution to prove guilt of the accused beyond all

reasonable doubt. The incident in question has given rise to the

registration of a case and the counter case. The case has been

registered on the basis of the FIR Exhibit-1 of P.W.8 Sawaru

Choudhary recorded at about 3:00 PM of 18.11.1979 at the

Sadar Hospital, Siwan, by P.W.10 Ramadhar Singh of the

Siwan Muffasil Police Station. This FIR has resulted in

registration of Siwan Muffasil Police Station Case

No.16(11)/79, the charge sheet of which has resulted in

registration of the sessions case giving rise the Judgment and

order passed which is the subject matter of the instant appeal.

Similarly, as admitted by P.W.10 Ramadhar Singh, the

Investigating Officer, on 18.11.1979 itself he had also recorded

the FIR lodged by Sheo Bachan Choudhary (deceased

appellant/accused) and, accordingly Siwan Muffasil Police

Station Case No.17(11)/79 came to be registered against the

accused persons therein (who are the members of the

prosecuting party in the instant case). The defence has got the

relevant documents in the counter case proved through defence

witness Kedar Nath Dubey.

Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

15. The defence had produced the certified copy of

the entire order sheets in respect of the counter criminal case

arising out of P.S. Case No.17(11)/79 wherein the members of

the prosecuting party were the accused. The FIR of the counter

case upon being proved is marked as Exhibit-B by the learned

Trial Court. The charge sheet filed pursuant to investigation in

the cross case had resulted in registration of Trial No.879/86 on

the file of the learned Judicial Magistrate, Siwan. The certified

copy of the entire order sheets of that trial was placed on the

record of this case which shows that the offences alleged were

under Sections 147, 148, 149, 324, 323 and 379 of the Indian

Penal Code as well as under Section 27 of the Arms Act.

Exhibit-16 is the certified copy of order dated 06.06.1986 in the

said Trial No.879/86, arising out of Police Station Case

No.17(11)/79 State Vs. Saryug Choudhary and Others. It is seen

therefrom that during the pendency of that case and after

recording evidence of some of the prosecution witnesses

including Madan Choudhary and Hari Shankar Choudhary (the

accused herein), the said Trial came to be withdrawn by the

prosecution by resorting to Section 321 of the Cr.P.C. with the

reason that the case remained pending for more than five years.

16. It is well settled that a case and the counter case Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

arising out of the same incident should always be tried by the

same Court. The case and counter case is required to be tried in

quick succession by the very same Judge, who is not supposed

to pronounce the judgment till hearing of both cases is

concluded. Even one of such case is a Sessions triable case and

the another one is triable by the Judicial Magistrate then also by

resorting to the provision of Section 323 of the Cr.P.C., the

learned Judicial Magistrate is required to commit such

Magistrate triable case to the Sessions Court for trial with the

another case. Evidence in both such cases is required to be

recorded separately and evidence in one case cannot be read

while deciding the another case. However, it is seen that instead

of adopting this well established procedure, the counter case

was being tried separately by the Court of the Judicial

Magistrate which ultimately ended in its withdrawal by

prosecution. The solitary practice of trial of the case and the

counter case as stated has practical reasons for its adoption.

Such course of action eliminates the danger of an accused being

convicted before disposal of whole case by the Court and

prevents delivery of conflicting judgments upon similar facts.

This is because, for all practical purposes, the case and the

counter case are conflicting and different versions of the very Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

same incident.

17. Be that as it may, our exercise should not be

considered as reading evidence from the counter case as

whatever is being relied by us is the material which is

admissible in evidence and proved in the case in hand.

18. Bone of contention between the parties seems

to be 8 Kathas land purchased by P.W. 8 Sawaru Choudhary and

his deceased brother Ramanand Choudhary from Abdul Manan

and Abdul Mastan about one year back from the date of the

incident. It is case of the prosecution that because of this

purchase, the accused persons were harbouring grudge, as they

also intended to purchase very same land. Hence, according to

the persecution case reflected from the FIR lodged by P.W. 8

Sawaru Choudhary, at about 11 A.M. of 18.11.1979, all three

accused persons dashed at their door and committed murder of

Ramanand Choudahry, attempted to commit murder of P.W. 8

Sawaru Choudahry and inflicted injuries on P.W. 5 Saryug

Choudahry by using dangerous weapons. The cross case

reflected from proved FIR (Ext. B) of Police Station Case No.

17(11)/79 lodged by deceased appellant-accused Sheo Bachan

Choudahry was to the effect that Chote Lal Choudahry

deliberately left his shegoat for grazing in their filed and when Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

Hiramati - daughter of Sheo Bachan Choudhary (deceased

appellant-accused) was taking that shegoat to the cattle pond,

there was quarrel. Because of that quarrel, P.W. 5 Saryug

Choudahry, P.W. 3 Indrasan Choudhary, Ramanand Choudahry

(since deceased), P.W. 8 Sawaru Choudahry and others attacked

the house of Sheo Bachan Choudahry (deceased appellant-

accused) armed with sticks, spear, Farsa, country made gun and

assaulted him as well as his sons Harishankar Choudhary

(appellant-accused no.2) and Madan Choudhary (appellant-

accused no. 3). These are the conflicting versions of the very

same incident coming on record from the case and from the

proved FIR (Ext. B) of the counter case. As per version of the

prosecuting party in this case, the accused persons came at the

door of the house of P.W. 5 Saryug Choudhary and P.W. 8

Sawaru Choudahry, murderously assaulted them and killed

Ramanand Choudhary.

19. P.W. 8 Sawaru Choudhary who lodged the FIR

on 18.11.1979 came to be examined as witness by the

prosecution on 08.08.1988 i.e. after about nine years from the

date of the incident. We noted that while in the witness box, this

first informant had modulated his version to suit the case of

prosecution. As per his statement before the court after nine Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

years from the incident, the field purchased by him and his

brother Ramanand Choudhary (the deceased) one year earlier

from Abdul Menan and Abdul Mastan was in front of the house

of accused persons and they were not happy because of this

transaction. On the day of the incident he went to that field to

check germination of wheat seeds sown in that field and there

the accused persons started abusing him. P.W.8 Sawaru

Choudhary further deposed that he therefore wanted to return to

his house but the accused persons encircled him near Neem

Tree. As stated by P.W. 8 Sawaru Choudhary, the incident of

murderous assault then took place at that Neem Tree in which

accused no. 3 Madan Choudahry gave two blows of spear on his

back and accused no. 2 Harishankar @ Hulas Choudahry gave

blow of stick to him. P.W. 8 Sawaru Choudahry stated that then

his brother Ramanand Choudahry (the deceased) and father P.W.

5 Saryug Choudahry came. Accused Sheo Bachan Choudahry

then assaulted on neck of Ramanand Choudhary by spear,

accused no. 2 Harishankar @ Hulas Choudhary gave two blows

of Bhuhjali to Ramanand Choudhary - one on chest and one on

back. Accused no. 3 Madan Choudahry gave blows of stick to

Ramanand Choudhary and then accused no. 2 Harishankar @

Hulas Choudhary gave blows of Bhujali on right hand and left Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

elbow of P.W. 5 Saryug Choudhary. As deposed by P.W. 8

Sawaru Choudahry then they went on road and met P.W. 3

Indrasan Choudahry as well as P.W. 1 Hira lal Choudahry. They

all then went to the Siwan Hospital where he lodged the FIR

Ext. 1.

20. P.W. 8, Sawaru Choudahry in chief-examination

itself had dis-owed the prosecution case regarding the mode and

manner of happening of the incident as well as the spot of the

incident. He changed his version by departing from the

prosecution case while in the witness box. As stated, the

prosecution case is to the effect that the accused persons raided

the house of P.W. 5 Saryug Choudahry and P.W. 8 Sawaru

Choudahry and committed the offence at the door of these

prosecution witnesses. However as against this, P.W. 8 Sawaru

maintained his changed version even in cross-examination by

stating that the accused did not come to his door for committing

the offence. He reiterated that at the time of the incident he was

returning from the canal and met the accused persons beneath

the Neem Tree where the incident took place. Thus, it is not in

evidence of P.W. 8 that the accused persons armed with

dangerous weapons came to his house and indulged in the

murderous assault at his door.

Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

21. We have also noted that P.W. 8 Sawaru

Choudhary, though claims to have witness the minutes details of

the incident which took place at about 11 A.M. of 18.11.1979,

had blatantly stated that he had not seen wounds on person of

any of the accused nor did he met them at the Siwan Hospital.

He however admitted that deceased appellant/accused Sheo

Bachan Choudahry had lodged the cross case in which he is on

bail. Thus, it is emerged from the evidence of First Informant

-P.W.8, Sawaru Choudahry that the incident in question did not

take place at the door of his house and as stated by him in the

FIR lodged by him at 3 P.M. at Siwan Hospital. It took place

somewhere else when he was returning from the canal as well as

his field and after hurling of abuses by the accused persons

when he was at his field.

22. Now let us examine what P.W. 5 Saryug

Choudhary, another injured witness and father of P.W. 8 Sawaru

Choudahry speaks about the incident. This witness was also

examined after eight years of the incident. This witness has also

given a complete go by to the prosecution case as he has not

stated that the accused persons come to his door and indulged in

murderous assault on them. P.W. 5 Saryug Choudhary has stated

that he as well as his son Ramanand Choudahry (the deceased) Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

left their house for joining duty at Siwan and on the way they

saw all accused persons abusing P.W. 8 Sawaru Choudhary. As

testified by P.W. 5 Saryug Choudahry then accused no. 3 Madan

Choudhary gave two blows of spear to P.W. 8 Sawaru

Choudahry and accused no. 2 Harishankar @ Hulas Choudhary

assaulted him by sticks. Thereafter, deceased appellant/accused

Sheo Bachan Choudahry gave blow of spear on right neck of

Ramanand Choudhary, accused no. 2 Harishankar @ Hulas

Choudhary assaulted Ramanandan Choudhary by Bhujali on

chest and back so also accused no. 3 Madan Choudhary

assaulted Ramanand Choudahry by stick. As stated by P.W.5

Saryug Choudhary he then tried to intervene but accused no. 2

Harishankar @ Hulas Choudhary gave blows of Bhujali at his

hands. This witness claimed that then they went at the road and

met P.W. 3 Indrasan Choudhary and P.W. 1 Hira Lal Choudahry.

23. In cross-examination, P.W. 5 Saryug Choudhary

was questioned about the manner of assault. Though this

witness denied that he as well as other members of he

prosecuting party had assaulted the accused persons by going to

their house, in a flow he stated that they assaulted the accused

persons near the Neem Tree. He reiterated that the incident

happened at the Neem Tree and then tried to cover himself by Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

saying that the assault was by the accused persons. However

what he had stated earlier speaks volumes in respect of the

incident, in the light of Judgment of the FIR of the cross case by

accused Sheo Bachan Choudhary. Version of this witness

coming on record from cross-examination indicates that there

was assault on the accused persons at the time of the incident by

the members of the prosecuting party and that assault had

caused injuries to the accused persons, which were ultimately

noted by P.W. 9 Dr. D. N. Shrivastava of Siwan Hospital. P.W. 5

Saryug admitted that the accused persons had filed the FIR

against him and others alleging assault. Thus evidence of P.W. 5

Saryug Choudhry indicates that it was a bilateral quarrel in

which both parties indulged in assaulting each other at the spot

which is totally different from the spot of the incident as

claimed by the prosecution. P.W. 5 Saryug Choudhary had given

the description of the four boundaries of the spot where the

incident took place. As per his version, on the northern side of

the spot of the incident, there was a filed of Kumar Ahir, on the

south of the spot of the incident, there is house of the accused

persons and also there is a well at a distance of 8 to 9 steps. On

the western side of the spot, at the distance of 25 steps there is

house of P.W. 3 Indrasan Choudahry as well as his own house Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

and at the eastern side of the spot, there is a well. The incident

of Marpit as per version of P.W. 5 Saryug Choudahry took place

under the Neem Tree. Thus, this version of the witness coming

in the cross-examination unerringly points out that the Marpit

did not take place at the door of the house of first informant

Sawaru Choudahry and his father P.W. 5 Saryug Choudahry, as

claimed by the prosecution.

24. P.W. 5 Saryug Choudhary, in his evidence has

stated that he witnessed the incident right from hurling abuses

by the accused persons to P.W. 8 Sawaru Choudahry till the end.

He himself had suffered injuries in that incident. However in

cross-examination, he stated that none of the accused persons

suffered injuries in this incident. It is very surprising that even

this injured eye witness so also P.W. 8 Sawaru Choudhary, who

according to their own statements were present on the scene of

the occurrence for the whole duration of the occurrence had not

even mentioned the injuries suffered by the accused persons in

the incident despite the fact that from evidence of P.W. 9 Dr. D.

N. Shrivastava of Siwan Hospital, it is proved that the accused

persons had suffered the injuries in the same incident. This fact

is also vouched from FIR of the cross case Ext. B, certified copy

of the order sheet of the cross case Ext. E and version of P.W. 10 Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

Ramadhar Singh, the Investigating Officer who saw the accused

persons admitted at the Siwan Hospital for their medical

treatment on 18.11.1979 itself.

25. The third eye witness as per version of the

prosecution case is P.W. 4 Anjoria Devi who is widow of

deceased Ramanand Choudahry. She has also changed her

version by disowing the prosecution case of murderous assault

at the door of her house causing death of her husband

Ramanand Choudhary. She stated that her father-in-law Saryug

Choudahry (P.W.5) and her husband Ramanand Choudhary left

the house for going to work and then she heard shouts.

Therefore, she came out of the house went up to the well and

stood at the well to see accused persons abusing P.W. 8 Sawaru

Choudahry under the Neem Tree. Thereafter as per her version

accused no. 3 Madan Choudhary assaulted P.W. 8 Sawaru

Choudhary by spear, accused no. 2 Harishankar @ Hulas

Choudahry assaulted him by stick. Thereafter as stated by P.W.

4 Anjoria Devi, deceased appellant-accused Sheo Bachan

Choudhary assaulted her husband Ramanand Choudhary by

spear. Accused no. 2 Harishankar @ Hulas Choudahry assaulted

her husband by sickle and accused no. 3 Madan Choudhary

assaulted her deceased husband by a spear. She also stated that Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

accused no. 2 Harishankar @ Hulas Choudahry assaulted P.W. 5

Saryug Choudahry by sickle. She claimed to have shown the

spot of the incident to the Investigating Officer from where the

blood mixed soil came to be seized vide the seizure memo

Ext.12. Though, this witness had claimed to have seen the entire

incident of assault on her husband Ramanand Choudahry and

in-laws, in cross examination, she has stated that she had not

seen any injury on person of any of the accused. She admitted

that because of the cross case, P.W. 3 Indrasan Choudhary and

P.W. 1 Hira Lal Choudahry were sent to the jail.

26. So far as spot of the incident is concerned, P.W.

4 Anjoria Devi has stated that the murderous assault took place

near the Neem Tree and her evidence shows that at about 7 to 8

steps away from that spot and at the southern side, there is a

well where she was standing at the time of the incident. Her

evidence further shows that from that well, house of accused

persons is at south-eastern direction, 40 to 50 steps away. She

stated that her house is on the western side of the well at a

distance of 80 to 90 steps. Thus according to version of this

witness, the incident took place at a distance of 7 to 8 steps on

the northern side of the well which was at the distance of about

80 to 90 steps away from the house of the members of the Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

prosecuting party. The location of the spot of the incident given

by this witness as such is not as per the case of the prosecution.

27. It is thus clear from version of two injured

witnesses viz P.W. 5 Saryug Choudhry, P.W. 8 Sawaru

Choudahry and P.W. 4 Anjoria Devi, that they had not placed the

whole set of relevant facts before the court. They had

suppressed the injuries suffered by the accused persons during

the course of the incident apart from changing the spot of the

incident. This seems to be obviously done in order to modulate

their version to suit the documentary evidence collected by the

Investigator. Evidence of P.W. 10 Ramadhar Singh, the

Investigating Officer shows that the incident took place at the

western side of Neem Tree on the land of Kumar Choudhary

and Zutan Choudhary. The spot of the incident was piece of land

admeasuring 15 to 16 dhoors (250 square feet) and the soil

thereat was found trampled. The Investigating Officer deposed

that the blood was found lying below the Neem Tree and he had

seized soil stain with blood from that spot vide seizure memo

Ext. 12. This evidence of the Investigating Officer thus makes it

clear that he could not found any soil mixed with blood in front

of the door of the injured members of the prosecuting party.

Rather the piece of land near the Neem Tree was showing the Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

signs of happening of the incident. In our opinion, these

prosecution witnesses, in order to make their evidence in tune

with the prosecution case, have changed their version regarding

the place of occurrence.

28. Thus, it is obvious that the prosecution has not

unfolded its case, rather it has indulged in suppression of

genesis of the case. To reiterate, accused no.3 Madan

Choudhary was having injuries caused by firearm on his right

arm apart from lacerated wounds on his head and right hand,

which is open portion of the human body. His brother

Harishankar was having 11 lacerated wounds on chest caused

by the firearm apart from lacerated wounds on his forehead and

middle of head. These wounds were certainly on the open part

of his body, i.e., head visible by the naked eye. Their father,

i.e., accused Sheo Bachan had two lacerated wounds on head

apart from other injuries. Thus, out of several injuries suffered

by the accused persons many injuries were on visible parts of

their body. Two of the accused had suffered numerous small

lacerated wounds caused by use of firearm. Feigning ignorance

to these injuries by the prosecution witnesses implies that the

prosecution witnesses have suppressed the genesis of the

incident. We may note that the accused generally tried to Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

conceal their minor and superficial injuries as those injuries

become evidence of their involvement in the incident. In such

cases, non-explanation of injuries on the accused may not affect

the prosecution case. Similarly, the principle of doubting the

prosecution case if minor injuries on their persons goes

unexplained, may not apply where the evidence of the

prosecution is clear, cogent, independent and trustworthy.

However, in the case in hand, the situation is otherwise. All

accused persons have suffered several bleeding injuries in the

very same incident and they were admitted to the Hospital soon

after the incident which took place at about 11.00 A.M. of

18.11.1979. After completion of medical examination of the

members of the prosecuting party, in sequence P.W.9 Dr. D.N.

Srivastava had examined the accused persons from 01.35 P.M.

on that day. We found that the injured witnesses as well as the

related witness P.W.4 Anjoria Devi have deliberately feigned

ignorance about the injuries suffered by the accused persons,

which were obviously visible, apart from change of the spot of

the incident during the course of their evidence. In this view of

the matter, let us examine what is the effect of this conduct on

the part of the prosecution witnesses. In the matter of Lakshmi

Singh & Others (supra), in paragraph-11, this aspect is Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

considered by the Hon'ble Supreme Court. The relevant

portion there of reads thus:

"11. PW. 8 Dr. S.P. Jaiswal who had examined Brahmdeo deceased and had conducted the post- mortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the Court, on April 22, 1966 and found the following injuries on his person:

"1. Bruise 3" × 1/2" on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle.

2. Incised wound 1" × 2 m.m. × skin subcutaneous deep on the lateral part of the left upper arm, near the shoulder joint.

3. Punctured wound 1/2" × 2 m.m. × 4 m.m. on the lateral side of the left thigh about 5 inches below the hip joint."

According to the Doctor injury No.1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounded duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

did not see any injuries on the person of the accused. Indeed if the eyewitnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most importance circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non- explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar, (1968) 3 SCR 525 = (AIR 1968 SC 1281) tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows:

"The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W.15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence.

Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries ... In our judgement the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilitise the plea taken by the appellants." This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. The State of Punjab, Criminal Appeal No.266 of 1971 decided on April 25, 1975= (reported in AIR 1975 SC 1674) which was also a murder case, this Court, while following an earlier case, observed as follows:

"In State of Gujarat v. Bai Fatima (Criminal Appeal No.67 of 1971 decided on March 19, 1975) = (reported in AIR 1975 SC 1478) one of us (Untwalia, J.,) speaking for the Court, observed as follows:

"In a situation like this when the prosecution fails to explain the injuries on the person of an accused depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgement. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case."

It seems to us that in a murder case, the non-

explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of Pws. 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No.67 of 1971 decided on March 19, 1975:

(Reported in AIR 1975 SC 1478) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."

29. In the matter of Madho (supra) in paragraph-2

following are the observations in that regard made by the

Hon'ble Supreme Court:

"2... If we turn to the injuries sustained by the two respondents which have been set out in paragraph 25 of the trial court judgment, we find that the respondent Kishna had sustained as many as six injuries, five of them on the skull region. The respondent Madho too had sustained six injuries, two on the skull region, two on the scapular region, one on the forehead and one on the right index finger. Thus some of the injuries were on exposed parts of their bodies and we would expect the prosecution witnesses to explain to how the two respondents sustained the said injuries. No explanation worth the name is forthcoming.

The trial Court, however, brushed aside this infirmity by pointing out that in the cross case filed at the behest of the respondent Kishna the evidence disclosed that there was no farsi blow Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

and, therefore, the defence theory was not acceptable. Counsel for the respondents, however, questioned the admissibility of the said evidence. Be that as it may, mere acquittal of the accused (prosecution side herein) in that case does not render the defence version false. The defence version has to be evaluated on the basis of the prosecution evidence tendered in the present case. The fact remains that both the respondents had sustained injuries, Kishna mainly on the skull whereas Madho on the skull as well as scapular region. If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of doubt as it was hazardous to place implicit reliance on the testimony of the injured PW2."

30. It is thus clear that because of non-explanation

of injuries suffered by the accused persons, case of the Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

prosecution has incurred a manifest defect. The whole

unvarnished truth has not been unfolded by the prosecution

through its witnesses during the course of the trial thereby

leaving this Court only to indulge in the guess work or surmises

to arrive at the correct conclusion. The reasonable doubt in

such situation lurks in the judicial mind as to whether really the

accused persons were aggressor and they were indulged in

commission of the murderous assault on the prosecuting party

or whether the members of the prosecuting party had indulged

in assault on the accused persons by using firearms and other

weapons. Ultimately, two of the accused persons have suffered

injuries caused by the firearms and the F.I.R. of the cross case

which is proved in this case indicates assault by the members of

the prosecuting party on the accused persons by using firearm

and other dangerous weapons. One thing which can be said

with certainty is that the accused persons had sustained injuries

at the time of the occurrence and absolutely no reason is

forthcoming from the side of the prosecution as to how the

accused came to be injured at the time of the incident. The

result which may follow is an inference that the accused

persons might have inflicted injuries on the members of the

prosecuting party in exercise of their right of self defence, as Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

the injuries sustained by the accused were not minor or

superficial, as stated by P.W.9 Dr. D.N. Srivastava.

31. Now let us examine whether the right of

private defence has to be pleaded specifically or it is open for

the court to consider such plea if the same arises from the

material on the record. In the matter of Munshi Ram and Ors.

Vs. Delhi Administration (19682) 2 SCR 455, the Hon'ble

Supreme Court has observed that it is not necessary to plead

self defence but such plea is open for consideration if the same

arises from the material available on the record. The burden of

establishing such plea by the accused can be discharged by

indicating preponderance of probabilities in favour of such plea.

The learned Senior counsel appearing for the appellants has

rightly relied on the Judgment in the matter of Darshan Singh

(supra) on this point and in paragraph 58 of the said Judgment,

this position has been vividly summarized thus:

"58. The following principles emerge on scrutiny of the following judgments:

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (emphasis supplied)

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."

32. In the case in hand, the defence has brought on

record the circumstances which shows that by modulating their

version the prosecution witnesses have changed the spot of the

incident to suit it as per notes taken by the Investigating Officer

and each one of them have suppressed the several visible

injuries suffered by the accused persons in the incident in

question. The witnesses are either related witnesses or highly

interested in securing the conviction of the accused persons.

P.W.4 Anjoria Devi is certainly an interested witness as well as

inimical witness as her husband Ramanand died in the incident

in question. As they had suppressed the genesis and origin of

the occurrence and had not presented the entire set of facts

leading to the occurrence, it is highly unsafe to rely on the

version of P.W.5 Saryug Choudhary, P.W.8 Sawaru Choudhary Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

as well as that of P.W.4 Anjoria Devi to convict accused

persons. In every probability, it wan a bilateral transaction in

which both the parties suffered injuries. The prosecuting party,

in every probability, had used the firearm in inflicting several

wounds on accused no.2 Hulas and accused no.3 Madan. Apart

from the Fire Arms, used of other weapons is apparent on

noticing the injuries on the accused. Section 100 of the Indian

Penal Code justifies the killing of an assailant when an assault

reasonably caused the apprehension that grievous hurt will

otherwise be the consequence of such assault. Reasonable

apprehension of death or genuine apprehension of grievous hurt

justifies the killing of the assailant. This right of private defence

is neither required to be pleaded nor is required to be proved

beyond reasonable doubt. The burden can be discharged by

preponderance of probability. In the instant case this has been

done by the defence by establishing that the accused suffered

several injuries in the incident which have not been explained

by the prosecution.

33. Let us now search for other corroborating

evidence if any in the matter to determine whether the charges

can be held to be proved against the accused persons. One such

piece of evidence is ocular evidence of P.W.10 Ramadhar Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

Singh-the Investigating Officer. This witness had shown

extraordinary enthusiasm in supporting the prosecution case by

attempting to record the dying declaration of deceased

Ramanand Choudhary at the Sadar Hospital, Siwan. This

witness reached the Hospital at 03.00 P.M. of 18.11.1979,

recorded F.I.R. of P.W.8 Sawaroo Choudhary apart from

recorded his statement under Section 161 of the Code of

Criminal Procedure. He inspected the injuries on the person of

P.W.5 Saryug Choudhary, P.W.3 Indrasan Choudhary and that

of on persons of Ramanand Choudhary. He claimed to have

prepared the injury report (Ext.5). Indeed all the acts must have

consumed a lot of time of this Investigator after reaching there

at 3 P.M. Then this Investigating Officer ventured to record the

statement of Ramanand Choudhary which is at Ext.10. The

learned trial court has placed reliance on this dying declaration

by holding that it is corroborating the version of the prosecution

witnesses. Perusal of the dying declaration at Ext.10 itself

shows that P.W.10 Ramadhar Singh had found condition of this

injured very delicate. He noted that injured was having injuries

on his neck, back and waist, which were covered by the

bandage. It is further noted in the dying declaration at Ext.10

that the injured was not in a position to make a statement. Still Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

it is written in the dying declaration that the declarant had

stated that accused no.2 Harishankar had assaulted him

(deceased Ramanand) by means of Bhujali. It is seen from the

evidence of P.W.9 dr. D.N. Srivastava that injured Ramanand

Choudhary immediately died thereafter at about 06.10 P.M. All

this goes to show that the declarant was not in a fit state of

mind to make the dying declaration nor the dying declaration at

Ext.10 is having any endorsement of the Medical Offficer

certifying that the deceased was in a fit state of mind at the time

of making the declaration. As such the Dying Declaration

Ext.10 cannot be relied to base conviction for the capital

offence.

34. During the course of cross-examination, P.W.

10 Ramadhar Singh, Investigating Officer admitted that the

Police Station Case No.17(11)/79 was registered against the

prosecuting party but thereafter as the Investigating Officer

started answering the questions put up by the defence stating

that he is not remembering the facts, his cross examination

came to be deferred and the case diary of the case and the

counter case was called. The Investigator was then question

about the case as well as well as counter case by showing both

case diaries to him. However, thereafter also, apparently on the Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

false pretext of weak eye sight and by refusing to use

spectacles, P.W.10 Ramadhar Singh answered each and every

questions put up by the defence by stating either that 'he is

unable to tell' or 'he is unable to read'. He went on stating that

he is unable to tell whether his earlier recorded deposition in

this case contains the facts stated by him or not by or whether

his earlier deposition is correct or not. He expressed his

inability to state whether he had inspected the spot of the

incident or not, how many were injured persons in this case and

who was murdered, so also how many witnesses are examined

by the prosecution. He expressed his inability to tell whether

the entire chargesheet of this case was written by him in the

police station and on the instructions of the Informant. This

Investigating Officer by showing irresponsible behaviour has

feigned ignorance in respect of the facts of the cross case which

were put to him during the course of cross examination, despite

the fact that he himself had investigated that cross case. Thus,

even the evidence of Investigating Officer is also rendering the

prosecution case highly doubtful as the Investigator does not

seem to be an impartial officer. He seems to have taken the

advantage of the fact that he is retired from the service at the

time of recording his evidence.

Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

35. P.W.3 Indrasan Choudhary is brother of P.W.5

Saryug Choudhary and he claimed that he was not present on

the spot of the incident. Still he had suffered the injuries and he

was admitted at the Sadar Hospital, Siwan, He got treatment by

P.W.9 Dr. D.N. Shrivastava. He is an accused in the cross case.

He has also shown his ignorance about the injuries on the

accused persons though he claims that accused no.2 Hulas had

assaulted him at the Sadar Hospital, Siwan at about 12.00 noon.

Evidence of Dr. D.N. Shrivastava shows that accused no.2

Hulas was admitted at the hospital on that day with several

injuries. Hence, it is not safe to rely on the version of P.W.3

Indrasan Choudhary and there is nothing in his evidence for

establishing the charge.

36. P.W.1 Hira Lal Choudhary is a hearsay witness

who accompanied the injured to the hospital. P.W.2 Moti Lal

Prasad Sah was declared hostile by the prosecution as his

evidence is of no assistance for the prosecution. P.W.6

Phuljharia Devi is wife P.W.3 Indrasan Choudhary, who has

stated that Indrasan was taken into custody by the police in the

cross case. P.W.7 Sanehi Devi is wife of P.W.5 Saryug

Choudhary and her evidence is only to the effect that there is

well in front of the house of the accused no.2 Harishankar and Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

the area surrounded by the well is owned by the accused. This

probablised the defence version that the incident, in fact, took

place in the vicinity of the house of the accused persons. Except

this, there is nothing worth mentioning in the record.

37. In this fact situation if we perused the

Judgment of the learned trial court then it is seen that the

learned trial court had adopted pervers approach which has

resulted in convicting the accused persons. In paragraph-13 of

the impugned Judgment, the learned trial court had noted that

the prosecution witnesses are stating that the assault took place

near the Neem tree and then the Trial Court observed that the

parties could have been driven in the course of the fight or

assault and therefore deviation of the place of the occurrence to

certain extent is permissible. None of the witnesses examined

by the prosecution has deposed that the assault was at the door

of the First Informant and then the parties were driven towards

the Neem tree during the course of that assault. In paragraph 17

of its Judgment, the learned Trial Court noted that the spot was

shifted from the Darwaja to a distance of 20 to 25 yards and

recorded that the place of occurrence is not such a shifting is

not a major shifting. In fact, the manner of the happening of the

incident itself was changed by the First Informant, as noted by Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

us in the foregoing paragraphs of this Judgment. The learned

trial court in paragraph-19 of the Judgment accepted the fact

that the prosecution had not explained the injuries on the

accused but noted that those injuries were simple in nature and

held that there may be another version of the incident but the

case of the prosecution cannot be disbelieved on that count. We

are unable to endorse these observations in the light of the

nature of the injuries suffered by the prosecution, suppression

of fact by the witnesses examined by the prosecution and the

settled legal position in this regard.

38. In the light of the foregoing discussions we are

of the considered view that it will not be safe to convict the

accused persons on the basis of the evidence adduced by the

prosecution in the instant case and the accused persons are

certainly for benefit of doubt.

39. In the result, we proceed to pass the following

orders:

(I). The appeal is allowed.

(II). The impugned Judgment and Order of

conviction and resultant sentence imposed on the appellants

dated 12.04.1995 and 17.04.1995 respectively passed by the

learned Additional Sessions Judge-I, Siwan, in Sessions Trial Patna High Court CR. APP (DB) No.55 of 1995 dt.20-05-2022

No.77/84 arising out of the Police Station-Siwan Muffasil Case

No.16(11)/79 is quashed and set aside.

(III). The appellants/accused are acquitted of the

offence alleged against them. They be set at liberty forthwith, if

not required in any other case.

(A. M. Badar, J)

( Sunil Kumar Panwar, J)

P.S./-Bhardwaj/ Mkr.

AFR/NAFR                AFR
CAV DATE                25.04.2022.
Uploading Date          20.05.2022.
Transmission Date       20.05.2022.