Davindra Kumar Choudhary vs The State Of Bihar
2023 Latest Caselaw 5185 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.325 of 2017
     Arising Out of PS. Case No.-242 Year-2013 Thana- KARAKAT District- Rohtas
======================================================

Shankar Chaudhary Son of Sri Brij Raj Chaudhary, Resident of Village- Malpura, P.O. - Sakala, P.S. Karakat (Gorari), District- Rohatas.

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 456 of 2017 Arising Out of PS. Case No.-242 Year-2013 Thana- KARAKAT District- Rohtas ====================================================== Sukesh Sah Son of Bindeshwari Sah, Resident of Village- Malpura, Police Station- Gorari (Karakat), District- Rohtas.

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 481 of 2017 Arising Out of PS. Case No.-242 Year-2013 Thana- KARAKAT District- Rohtas ====================================================== Davindra Kumar Choudhary Son of Ram Parichhan Choudhary, R/o- Malpura, P.S.- Karakat, District- Rohtas.

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 325 of 2017) For the Appellant : Mr. Arvind Kumar Pandey, Advocate Mr. Abhishek, Advocate For the Respondent : Mr. Dilip Kumar Sinha, APP (In CRIMINAL APPEAL (DB) No. 456 of 2017) For the Appellant : Mr. Arvind Kumar Pandey, Advocate Mr. Abhishek, Advocate For the Respondent : Mr. Satya Narayan Prasad, APP (In CRIMINAL APPEAL (DB) No. 481 of 2017) For the Appellant : Mr. Shambhu Narayan Singh, Advocate For the Respondent : Mr. Bipin Kumar, APP Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 09-10-2023

The criminal appeals arise out of common judgment of

conviction dated 15.02.2017 and order of sentence dated

22.02.2017, therefore, to have been heard together and are being

disposed of by this common judgment.

2. All the appellants named above have preferred these

appeals against the common judgment of conviction dated

15.02.2017 and the order of sentence dated 22.02.2017, passed by

Shri Prabhu Nath Singh, Sessions Judge, Rohtas, Sasaram in

Sessions Trial No.378 of 2014 arising out of Karakat P.S. case

No.242 of 2013, whereby and whereunder the appellants have been

convicted under Sections 302/34 of the Indian Penal Code

(referred to 'I.P.C.') and have been sentenced to undergo life

imprisonment with fine of Rs.50,000/- each for the offence under

Sections 302/34 of the I.P.C. and in default of payment of fine,

further undergo rigorous imprisonment for one year.

3. The prosecution case, as per the written report of

informant Vikesh Kumar (PW 5), is that on 26.10.2013 at around

7.30 P.M. his elder brother Ramesh Kumar Sah went to attend Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

natural call towards road. In the meantime he heard cry of his

brother whereupon he run towards the road and he had seen in the

torch light, accused persons-appellants Davindra Kumar

Choudhary, Sukesh Sah and Shankar Choudhary armed with knife

and they were blowing knife repeatedly. The accused persons

seeing the informant also asked to do away his life. Then he ran

away from there towards village making alarm. The accused

persons threw the brother of the informant in the water and fled

away. The brother of the informant was taken out from the water

with the help of the villagers, then the informant saw the injury on

the person of his brother making by knife. His brother asked him

that Sukesh Sah, Davindra Kumar Choudhary and Shankar

Choudhary assaulted him badly by means of knife and further

asked him to take him to the Hospital for his treatment. Then he

was rushed to the Hospital, but his brother died in the way to the

Hospital. Then they rushed to the police station along with dead

body of his brother. It has been claimed by the informant that the

accused persons with common intention committed death of his

brother by means of knife.

4. On the basis of fardbeyan of the informant, Karakat P.S.

case No.242 of 2013 was registered. After completion of

investigation, the Investigating Officer submitted charge sheet Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

under Sections 302/34 of the I.P.C. and thereafter cognizance was

taken by the Jurisdictional Magistrate and thereafter the case was

committed to the court of Sessions. Charges were framed against

the appellants to which the appellants pleaded not guilty and

claimed to be tried.

5. During trial, the prosecution examined altogether nine

witnesses, namely, Rajesh Kumar Sah @ Rajesh Kumar (PW 1),

Nathuni Sah (PW 2), Rajendra Sao (PW 3), Amrawati Devi @

Umrawati Devi (PW 4), Vikesh Kumar @ Vikash-informant (PW

5), Dr. K.D. Pujan (PW 6), Rajindar Yadav (PW 7), Ajit

Choudhary (PW 8) and Bam Bahadur Choudhary (PW 9). In

support of its case, the prosecution has also produced exhibits as

Ext.1 (fardbeyan), Ext.2 (written report), Ext.3 (postmortem

report), Ext.4 (formal F.I.R.), Ext.5 (seizure list) and Ext.6 (inquest

report). In support of its case, the defence has produced exhibit,

viz. Ext.A (c.c. of final form/report of Karakat P.S. case

No.148/2009). After conclusion of the trial, the learned Trial Court

convicted and sentenced the appellants in the manner as indicated

above.

6. Learned counsel for the appellants has submitted that the

trial suffers from several infirmities that have been overlooked by

the learned trial Court and, therefore, the impugned judgement is Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

not sustainable in the eyes of the law. It has been contended that

the prosecution has miserably failed to prove the place and manner

of occurrence beyond reasonable doubt, as the material

contradictions and discrepancies in the testimony of the

prosecution witnesses cast doubt on the case of the prosecution. To

buttress this contention, attention has been drawn to the deposition

of the eyewitnesses, asserting that severe discrepancies exist in the

ocular testimony of PW 1, PW 2, PW 3, PW 4 and PW 5. It has

been pointed out that their testimonies suffer from inconsistencies

and deserve rejection. Moreover, PW 5 (Informant), who is alleged

to be an eyewitness, doesn't mention the presence of other

witnesses as eyewitnesses to the offence. The attention of this

Court has also been drawn to the absence of any source of light,

and thereby, the possibility of identification made by the deceased

in his oral dying declaration regarding the participation of

appellants in the alleged crime can be considered as a mistaken

identity. Moreover, the testimony of a doctor casts doubt on the

oral dying declaration, stating that the patient would have died

immediately after sustaining multiple injuries. Furthermore, the

Investigating Officer did not seize the light alleged to be the source

of identification by PW 5. Additionally, the Investigating Officer

testified that there were no cut marks on the clothes of the Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

deceased, despite multiple stab injuries. Therefore, it has been

argued that there are severe lacunae in the prosecution's case, and

the chain of circumstances does not unequivocally point to the

guilt of the appellants. Hence, the findings of the learned trial

Court are legally flawed, incorrect in terms of facts, lacking in

legal reasoning, and devoid of merit, making the judgement of

conviction fit to be set aside.

7. Learned APP for the State, on the other hand, has

submitted that the judgement of conviction and order of sentence

under challenge require no interference as the prosecution has

been able to prove the case beyond all reasonable doubts. It has

been submitted that the prosecution witnesses have remained

consistent in the testimony during the course of trial and there does

not remain any lacuna in the case of the prosecution. The minor

inconsistencies in the testimony of the witnesses cannot be a

ground to reject their evidence as a whole. It has been further

contended that there does not lie any hiatus in the chain of

circumstances and all the evidence points towards the guilt of the

appellants. Therefore, it has been argued that guilt of the

appellants has been satisfactorily proved by the evidence adduced

during the course of trial and there is no infirmity in the judgement

of conviction of the learned trial Court.

Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

8. After perusing the record and hearing the arguments

advanced by the parties, following issues arise for consideration in

these appeals: -

(I) Whether the oral dying declaration can be relied upon in the absence of a source of identification and considering the testimony of the doctor?

(II) Whether the presence of the alleged eyewitnesses (PW1 to PW4) at the place of occurrence becomes doubtful in the light of the statement made by the Informant (PW5)?

(III) Whether the presence of PW5 at the alleged place of occurrence can be considered admissible in light of the fact that he heard the voice of the deceased from 800 gaj which is equivalent to 0.728Km?

(IV) Whether the absence of cut marks on the clothing of the deceased despite the presence of multiple stab injuries is fatal for the prosecution's case?

(V) Whether non-examination of the material witnesses (Rahul Paswan, Ghamri Ansari and Sanju Singh), who helped the Informant to take out the deceased from the pond and in front of whom it is alleged that the deceased made oral testimony, has caused prejudice to the appellants?

9. With reference to issue no. I, it is evident from the

perusal of the records that the occurrence occurred between 7:00

and 7:30 PM during the month of October. Further, it has been

found from the fardbeyan, which has been marked as Exhibit 1 and Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

from the testimony of alleged eyewitnesses that the deceased made

an oral dying declaration in front of the alleged eyewitnesses and

co-villagers, alleging that the appellants have badly assaulted him

with knife and asked to quickly take him for treatment. These

given facts hold significant relevance to the manner in which oral

dying declaration is made. It is relevant to take note that the

prosecution has not produced any evidence regarding the source of

identification in which the deceased identified the appellants.

Additionally, PW5 (Informant) mentions in para 12 of his

deposition that it was a dark night. Considering the time of

occurrence (7-7:30 pm on October 26th), it raises questions about

the possibility of accurate identification under such conditions. At

this juncture, it is relevant to take note of the principles cited for

dying declaration by Hon'ble Supreme Court in the case of

Khushal Rao v. State of Bombay reported in AIR 1958 SC 22 at

para 16 that:

"On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid,

(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

(2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

(3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;

(4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

(5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and

(6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

In the light of the facts of the present case and being

mindful of the governing principles regarding dying declaration,

we find it difficult to rely upon the oral dying declaration made by

the deceased. Moreover, through the evidence of the Doctor

(PW6), who conducted the post mortem stated in para 19 of his

deposition that after sustaining injuries as mentioned in the post

mortem report, the person will die immediately.

Hence, the oral dying declaration made by the deceased

cannot be relied upon in the light of no evidence regarding the

source of identification and the testimony of the doctor regarding

the injuries suffered by the deceased.

Accordingly, the issue no. I is decided in negative.

10. With reference to issue no. II, it is relevant to take note

that the prosecution alleged to have five eye-witnesses including

the informant, to this case, who all are related witnesses. Though

the PW1 to PW5 contends to be an eyewitness to the alleged

occurrence. It is relevant to note that, unfortunately from the

paper-book it is evident that there are two persons examined as

PW3. As far as the evidence of 1st PW3, Rajiv Sao S/o Nathuni

Sao is concerned. Since he has not been put up for cross Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

examination by the defence and reasons best known to the

prosecution. His evidence cannot be looked at. Coming to the PW3

Rajendra Sao S/o Late Kashinath Sao, who also claims to be an

eyewitness to this case.

The presence of the PW1 to PW4 at the alleged place of

occurrence becomes doubtful in light of the testimony of PW5

(Informant) where in para 13 of his deposition, he categorically

stated that he saw that the deceased was lying on the road, he goes

back shouting and thereafter the rest PW1 to PW4 came together

at the place of occurrence. So, as per the deposition of PW5, none

of the eye-witnesses had occupied him earlier, rather after

shouting, when the informant again went to the place of

occurrence then the deceased was in the pond. At this point, it is

imperative to consider the decision of the Hon'ble Supreme Court

passed in the case of Sunil Kumar Shambhudayal Gupta and

others versus State of Maharashtra, reported in (2010) 13 SCC

657, where in para no. 16 the following has been observed:

"The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting that evidence. In such circumstances witnesses may not inspire confidence if the evidence is found to be in conflict and contradiction with the other evidence and the statement already recorded. In such a Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

case, it cannot be held that the prosecution proved its case beyond reasonable doubt."

In light of the discussions made above, we are of the

considered opinion that there exist reasonable doubts,

contradictions, and inconsistencies in the testimony of the witnesses

which casts doubt on the presence of the eyewitnesses (PW1 to

PW4) at the place of occurrence.

Accordingly, the issue no. II is decided in affirmative.

11. With reference to Issue No. III, when assessing the

credibility of the (PW5) Informant's testimony, it becomes

paramount to evaluate the plausibility of his claim to have heard the

deceased's shouts from a substantial distance of 800 gaj, equivalent

to 0.728 kilometres. The Investigating Officer (PW9) has

acknowledged that the distance between the deceased's residence

and the alleged place of occurrence spans 800 gaj, equivalent to

0.728 kilometres. Such an extensive distance warrants a

comprehensive evaluation of the acoustic conditions at the alleged

site. The prosecution contends that the Informant, PW5, asserts

hearing the deceased's voice while positioned on the road in front of

his residence. Moreover, it has come to light, through the

testimonies of PW5 and corroborating statements from other

witnesses, that PW5 was present at his door where 4-5 other

individuals were engaged in unloading grills. This assertion, Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

however, raises significant doubts within the purview of this Court.

The Court finds it implausible that an ordinary person could

perceive audible sounds from such a considerable distance,

particularly amidst the potential ambient noise of daily life. In light

of these concerns, the Court is compelled to cast doubt upon the

reliability and credibility of PW5's testimony in this context.

Hence, it is the considered opinion of this Court that, given

the circumstances involving individuals surrounding PW5 while

unloading grills, his claim of hearing the deceased's shouts from a

distance of 800 gaj (equivalent to 0.728 kilometres) appears

unreasonable. Consequently, the credibility of PW5's presence at

the place of occurrence and being eyewitness to this case is subject

to doubt.

Accordingly, the issue no. III is decided in negative.

12. In addressing issue no. IV, it is crucial to underscore the

assertion that the deceased sustained multiple stab injuries which

resulted in his demise. However, upon careful examination of the

inquest report, it is evident that there is no reference to cut marks on

the clothing of the deceased. This critical information is further

substantiated by the deposition of the Investigating Officer (PW9)

in paragraph 14, where he confirms the absence of any cut marks on

the vest and jeans worn by the deceased. Moreover, the inquest Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

report, which has been marked as Exhibit 6, explicitly notes the

deceased as being attired in jeans and a vest, yet no mention of any

cut marks or alterations on the clothing. Of particular relevance is

the testimony of the Doctor (PW6) in the post-mortem report,

which delineates the presence of multiple stab injuries on the

deceased's body. Notably, the deceased was wearing jeans and vest,

and it is evident that these injuries coincide with the sharp cut

injuries, specifically injury no. (iii) on the left side of the chest,

injury no. (iv) on the epigastric region, injury no. (v) on the left side

of the abdomen, injury no. (vii) on the back of the chest in five

locations, and injury no. (viii) on the front of the chest near the

heart. Consequently, it stands to reason that cut marks should have

been discernible on the clothing of the deceased.

In light of the foregoing analysis and the issues raised

herein, this Court is compelled to scrutinize the prosecution's case

with meticulous attention. The absence of any mention of changes

in the clothing of the deceased, despite the presence of multiple stab

injuries, poses a formidable challenge to the prosecution's narrative.

The inquest report, testimonies of witnesses, and the post-mortem

findings collectively raise serious doubts regarding the veracity and

completeness of the evidence presented. This Court underscores

that the prosecution carries the burden of proving its case beyond a Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

reasonable doubt, and the inconsistencies surrounding the condition

of the deceased's clothing and absence of cut marks on it create

significant ambiguity. In the absence of concrete evidence

supporting the presence of cut marks on the clothing, a fundamental

gap in the prosecution's case emerges.

Accordingly, the issue no. IV is decided in affirmative.

13. With reference to issue no. V, it is evident from the

fardbeyan, which has been marked as Exhibit 1 that three persons

namely, Rahul Paswan, Ghamri Ansari and Sanju Singh helped the

Informant to take out the deceased from the pond, could have been

the Independent Witness to the oral dying declaration and non-

examination of these material witnesses cast doubt on the

prosecution. In this context, it becomes imperative to refer to the

Hon'ble Supreme Court judgement in the case of Takhaji Hiraji v.

Thakore Kubersing Chamansing reported in (2001) 6 SCC 145, in

paragraph 19 of the judgement, it has been observed that the non-

examination of a material witness, who could provide essential

information or fill gaps in the prosecution's case, may lead the

Court to draw an adverse inference against the prosecution.

However, if overwhelming evidence has already been presented, the

non-examination of additional witnesses may not be significant. In

such cases, the Court must scrutinise the value of the evidence Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

already presented and consider whether the witness in question was

available but withheld. Thus, in light of the above referred decision

of the Hon'ble Supreme Court, in the facts of the present case we

find that the persons named in the FIR who helped the informant to

take out the deceased from the pond and who would have listened

to the oral dying declaration if made and could be a material

independent witness to this case if not withheld. Thereby, adverse

inference can be drawn against the prosecution in this case. Hence,

non-examination of the material witness who has been withheld by

the prosecution caused prejudice to the appellants.

Accordingly, the issue no. V is decided in affirmative.

14. In light of the above mentioned legal positions and on

the basis of the findings arrived at on the issues formulated above,

we are of the considered opinion that the conviction of the

appellants in all the appeals is not sustainable in the eyes of law and

the prosecution has failed to prove its case beyond all reasonable

doubts.

15. Therefore, all the criminal appeals stand allowed and

the judgment of conviction dated 15.02.2017 and order of sentence

dated 22.02.2017, passed by Shri Prabhu Nath Singh, Sessions

Judge, Rohtas, Sasaram in Sessions Trial No.378 of 2014 arising

out of Karakat P.S. case No.242 of 2013, are set aside.

Patna High Court CR. APP (DB) No.325 of 2017 dt.09-10-2023

16. Since the appellant Shankar Chaudhary of Criminal

Appeal (DB) No.325 of 2017 and appellant Davindra Kumar

Choudhary of Criminal Appeal (DB) No.481 of 2017, are in jail

custody, they are directed to be released from custody forthwith, if

not wanted in any other case.

17. The appellant Sukesh Sah of Criminal Appeal (DB)

No.456 of 2017 is on bail, he is discharged from the liability of his

bail bonds.

18. Pending application (s), if any, stand disposed of.

(Sudhir Singh, J)

( Chandra Prakash Singh, J) Narendra/-

AFR/NAFR                AFR
CAV DATE                26.09.2023
Uploading Date          09.10.2023
Transmission Date       09.10.2023