Samarendra Pratap Singh, J.@mdashBoth Criminal Appeal Nos. 535 of 2012 and 794 of 2012 are directed against the common judgment and order dated 19.5.2012 passed by the learned 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 30 of 2008/Sessions Trial No. 167/09, whereby all the four appellants have been convicted under sections 302, 201 and 120B of the I.P.C. The sole appellant Vishwanath Choudhary of Criminal Appeal No. 535 of 2012 has been sentenced to R.I. for life imprisonment under sections 302/34 and 120B of the Penal Code and has also been ordered to pay a fine of Rs. 1 lac. The rest three appellants of Criminal Appeal No. 794 of 2012, namely, Radheshyam Choudhary, Chandan Choudhary (absconding) and Vinod Choudhary are awarded death sentence under the said Court. However, no separate sentence has been passed for conviction u/s 201 of the Penal Code.
2. A Death Reference bearing Death Reference Case No. 13 of 2013 was registered in terms of section 366 of the Cr.P.C. The two appeals and the Death Reference have come for hearing before this Court.
3. The prosecution case as per fardbeyan of the informant Dilip Kumar Choudhary, recorded by Shri R.P. Gupta, Officer in charge of Bochahan P.S. Case on 8.8.2006 at 17.35 hrs, at his house Maidapur is as follows:
On 8.8.2006, as usual, the informant�s son Risabh Raj, aged about 4 years, was playing near his door along with other children in the morning. At about 10 A.M. Archana Devi (P.W. 6) (the wife of the informant) came out of her door to call his son for food but she could not find him. She made query from other children, who could not give any satisfactory answer. Archana Devi (P.W. 6) along with her mother Sushila Devi @ Bifya Devi (P.W. 6) and other started hectic search, but Risabh Raj was no where to be located. The informant on coming to learn about the incident at his shop situated at Sarfuddin Gudari Market at about 10.30 A.M., rushed to his residence. On query, his wife P.W. 6 and his mother P.W. 2 revealed that prior to 10 A.M. Risabh was seen playing near fallen Kadam tree with other children. One Radhyshyam Choudhary (appellant), Ghanshyam Choudhary (absconding), Krishna Choudhary (absconding), Chandan Choudhary (appellant-absconding) and Vinod Choudhary (appellant) were talking amongst themselves at their door and were looking in the direction of Kadam tree where the deceased child was playing. One Vishwanath Choudhary, brother-in-law of the absconding accused Krishna Kumar Choudhary, in the meanwhile, came out of the house and joined them. He too started staring at the child. This prompted the informant to make query from Krishna Choudhary and Vishwanath Choudhary who were standing at their door, but they feigned ignorance. The other accused, namely, Radheshyam Choudhary, Ghanshyam Choudhary, Chandan Kumar Choudhary and Binod Kumar Choudhary too came out of the house and all of their own stated that they do not know about the where about of his son. The informant returned to his door and while he was deliberating to approach Police with his elder brother Ram Chandra Choudhary and others, he saw the accused going towards north a bit nervous, via his house, after putting 3-4 locks on their door. As all further efforts to locate Risabh failed, the informant, about 4 P.M. on the same day along with Desbandhu Agarwal went to Bochahan P.S. and narrated the entire incident to the police.
The police soon thereafter came to his house and conducted enquiry. On seeing the door of accused heavily locked, the police with the help of the villagers entered the house of Krishna Kumar Choudhary (accused) by opening the back door. They found the son of the informant, namely, Risabh Raj, drenched in blood, wrapped in a Sujani, on the Chhaja of the house. A rope Sutli was tied around his neck which was slit with sharp cutting weapon. The informant claimed that all the accused persons in conspiracy with each other with common intention took his son to their house and slit his neck and kept the dead body on the roof of the house with an intention to hide the evidence.
4. On the basis of the fardbeyan (Ext. 7) of the informant (P.W. 7), a formal F.I.R. (Ext. 9) bearing Bochahan P.S. Case No. 99/06 dated 8.8.2006 was instituted for an offence punishable under sections 302, 201, 120(B)/34 of I.P.C. against six named accused persons.
5. After investigation, the police submitted charge sheet No. 102 of 2007 under sections 302, 201, 120(B)/34 of the I.P.C. at the first instance against accused Chandan Kumar Choudhary (absconding appellant) and Radheshyam Choudhary. Subsequently, Charge sheet No. 280 of 2008 was filed under the same provisions against the rest of four accused persons, showing Krishna Kumar Choudhary, Ghanshyam Choudhary as absconders.
6. The trial of the accused persons was separated. Sessions Trial No. 30 of 2008 was registered against Chandan Kumar Choudhary and Radheshyam Choudhary and Sessions Trial No. 167 of 2009 was registered against Vinod Kumar Choudhary and Vishwanath Choudhary. All of them were charged u/s 302/34, 201 and 120(B) of the I.P.C.
7. The prosecution examined altogether 11 witnesses in support of their case. P.W. 1, Ram Chandra Choudhary, is uncle of the deceased and gave his thumb impression on fardbeyan marked as Ext. 1/1; P.W. 2, Sushila Devi @ Bifya Devi, is grand mother of the deceased who also gave her thumb impression on Fardbeyan marked as Ext. 1/2; P.W. 3, Angad Kumar, is tenant of the informant; P.W. 4, Kaushal Kishore Singh, is independent witness; P.W. 5 Manish Kumar is nephew of the informant and witness to Inquest (Ext. 5/2); P.W. 6, Archana Devi is mother of the deceased; P.W. 7, Dilip Kumar Choudhary, is the informant and his signature on fardbeyan is marked as Ext. 1; P.W. 8, Ram Prikshan Gupta, is the Investigating Officer of the case and has recorded the fardbeyan (Ext. 7) of the informant; P.W. 9 Dr. Mumtaz Ahmad held post mortem examination (Ext. 10) of the deceased; P.W. 10 Sandip Kumar Singh is the Second I.O. of the case who submitted charge sheet showing accused Ghanshyam Choudhary as absconder and P.W. 11, Arun Kumar Keshari is the 3rd I.O. of the case who submitted charge sheet against the accused Chandan Choudhary and Radheshyam Choudhary. The list of exhibits proved and placed on record by the prosecution side are as follows:
i) Ext. 1- Signature of Investigation (P.W. 7) on fardbeyan
ii) Ext. 1/1- Signature of Ram Chandra Choudhary, P.W. 1 on fardbeyan
iii) Ext. 1/2- statement of Ram Chandra Choudhary (P.W. 1) u/s 164 Cr.P.C.
iv) Ext. 1/3- Signature of Archana Devi (P.W. 6) on Fardbeyan
v) Ext. 2- Statement of Angad Kumar Vishwas (P.W. 3)
vi) Ext. 3- Statement of Manish Kumar (P.W. 5) u/s 164 Cr.P.C.
vii) Ext. 4- Statement of Archana Choudhary (P.W. 6) recorded u/s 164 Cr.P.C.
viii) Ext. 5- Inquest report.
ix) Ext. 6- Dead body challan
x) Ext. 1/4- Signature of Ram Chandra Choudhary (P.W. 1)
xi) Ext. 1/5- Signature of Archana Devi (P.W. 6)
xii) Ext. 7- Fardbeyan recorded by the I.O. Ram Prikshan Gupta (P.W. 8)
xiii) Ext. 8- Endorsement of fardbeyan
xiv) Ext. 9- Formal F.I.R.
xv) Ext. 5/1- Signature of Umesh Choudhary (not examined), who is witness to inquest.
xvi) Ext. 5/2- Signature of Manish Kumar (P.W. 5) witness to Inquest report
xvii) Ext. 10- Post Mortem report proved by Dr. Mumtaz Ahmad (P.W. 9)
xviii) Ext. 11- Supplementary charge sheet proved (P.W. 10) by Sandip Kumar Singh
xix) Ext. 12- Signature on original charge sheet by P.W. 11 Arun Kumar Keshari
xx) Ext. 13- Statement u/s 164 Cr.P.C. of Dilip Choudhary (P.W. 7)
xxi) Ext. 14- Statement u/s 164 Cr.P.C. of Deshbandhu Agrawal (not examined)
xxii) Ext. 15- Statement u/s 164 Cr.P.C. of Umesh Kumar Choudhary (not examined).
8. The case of the defence is total denial of the occurrence and in their examination u/s 313 Cr.P.C. they have refuted the allegations of committing murder of Risabh Raj much less having connived with each other. The defence has also examined one witness namely D.W. 1 Rajiv Kumar Choudhary who has proved the following documents as under:
i) Ext. A- certified copy of F.I.R. of Sakra P.S. Case No. 208/2001 which was filed by the appellant Vishwanath Choudhary against Ram Chandra Choudhary (P.W. 1), Jai Prakash Choudhary, Dilip Kumar Choudhary (P.W. 7), Bacha Choudhary and Manish Choudhary (P.W. 5)
ii) Ext. B- Certified copy of charge sheet of Sakra P.S. Case No. 208/2001
iii) Ext. C- Deposition of appellant Vishwanath Choudhary of Sakra P.S. Case No. 208/2001
iv) Ext. D- Certified copy of sale deed dated 8.6.2004 executed by Vinod Choudhary in favour of Khushi Lal Choudhary.
9. The trial court after evaluation of evidence and hearing both sides held the accused persons guilty of charge under sections 302/34, 120B and 201 I.P.C. Whereas, the appellants Radheshyam Choudhary, Chandan Choudhary (absconding), Vinod Choudhary were inflicted death sentence, the appellant Vishwanath Choudhary of Criminal Appeal No. 535 of 2012 was sentenced to life imprisonment u/s 302/34 and 120B of the I.P.C. Being aggrieved, the appellants have preferred the instant appeals.
10. The plea of the appellants is that there is no direct evidence of the occurrence and admittedly no witness has seen the commission of murder. The evidence of prosecution is based on weak circumstantial evidence which does not form a complete chain pointing to the guilt of the accused. The prosecution has not been able to prove motive in the occurrence. Their statements are contradictory and have tried to develop the case during trial to fill the loopholes in the prosecution case. They state that they have already sold the house in question to Khusilal Mahto, and Chandan Choudhary (absconding) and Radheshyam Choudhary (appellant in Criminal Appeal No. 794 of 2012) lives at Delhi, and house of Vishwanath Choudhary (appellant in Criminal Appeal No. 535 of 2012) is 5-6 Kms. away from the place of occurrence.
11. It is not in dispute that the dead body of the deceased Risabh was recovered from the roof of the house which is said to be of the accused persons. It is a case of murder as his neck was slit with sharp cutting weapon and a rope was tied around his neck. The Inquest report and the Post mortem report also fortify that the boy was done to death.
12. P.W. 9 Dr. Mumtaz Ahmad who conducted autopsy, found the following wounds on the person of the deceased.
(i) One ligature mark approx, 0.75 c.m. broad was found in circling the neck completely at approx. middle level.
(ii) One incised wound with clear cut mar gene was found on front and right lateral side of neck just above middle level- 3" x 1.5" x muscle & trachea deep cutting the trachea from right lateral side on dissection. No any injury to muscles and vessels was found on left side of neck. The deceased died due to shock, hemorrhage & asphyxia as result of mainly by injury No. II caused by some sharp cutting weapon.
The Doctor opined that the deceased died due to shock, hemorrhage and asphyxia as a result of injury No. (ii) caused by sharp cutting weapon.
13. The issue would be whether the prosecution has succeeded in proving beyond all reasonable doubt that it is the accused persons who have murdered the deceased. In support of its case, the prosecution has examined altogether 11 witnesses, and has primarily relied upon the evidence of P.Ws. 1, 2, 4, 5, 6 and 7. P.W. 8 Ram Prakash Gupta, who recorded fardbeyan (Ext. 7) is the main Investigating Officer of the case. P.W. 10 Sandip Kumar Singh is the Second I.O. of the case who submitted charge sheet showing accused Ghanshyam Choudhary as absconder and P.W. 11 Arun Kumar is the 3rd I.O. of the case who submitted charge sheet against the accused Chandan Choudhary and Radheshyam Choudhary.
14. In order to appreciate the prosecution case, it would be necessary to notice their evidence in brief. P.W. 1 Ram Chandra Choudhary, the brother of the informant, stated that between 7.30 to 9 A.M. on 8.8.2006, he saw his nephew playing near Kadam tree which was 15 laggis away from his house. The accused persons were at the door of their house which was just after one house in the east. All the accused persons were looking towards the children. They were calling Risabh by luring him with chocolate. However, after 10 A.M., P.W. 2 Sushila Devi @ Bifya Devi, the grand mother of Risabh and P.W. 6 Archana Devi, mother of the deceased did not find him around. Thereafter all of them tried to began to look for Risabh but in vain. Risabh''s father who was at his cloth shop in Gudari Bazar was informed of the incident around 10.30 A.M. who immediately rushed to his house. He too began to look for his son but could not find them. He enquired from the accused persons who were at their door, but they pleaded ignorance. P.W. 1 further stated that after some time all the accused persons went away after locking the house. When all efforts to locate Risabh failed, his brother P.W. 7 informed the police about the incident, which came to their house and began enquiry and search. In course of search the police along with others entered the house of the accused persons by barging from the back door. They found the dead body of Risabh on the top of the roof wrapped in Sujani. The neck having been slit by a sharp cutting weapon and a rope was found tied around the neck.
15. P.W. 2, Sushila Devi @ Bifya Devi, grand mother of deceased too stated that on 8.8.2006 at around 10 A.M. she was at her door. Her grand son Risabh was playing along with other children in front of her house. She saw the accused persons who were standing at their door pointing towards Risabh. Thereafter she went inside the house. During that time Risabh''s mother asked her to call Risabh for having his food. When she came out, she did not find Risabh around. Thereafter, Dilip Kumar Choudhary, the father of the deceased, was informed about missing of his child. On coming home, Dilip too enquired from the accused persons who pleaded ignorance about whereabouts of the deceased. Thereafter she saw the accused persons moving out of their house after putting locks on the door. The Police recovered the dead body from the roof top of the house of the accused persons, whose neck stood slit. The Investigating Officer took the statement of the informant on which she also put her thumb impression.
16. P.W. 3, Angad Kumar, stated that about 10 A.M. he saw the accused persons going out of their house.
17. P.W. 4, Kaushal Kishore Singh, stated that his house is in front of the house of the accused persons. At about 10 A.M., Risabh was playing at a distance of 5-6 laggis away. He saw Risabh in the lap of Krishna Choudhary (absconding) who was offering something like chocolate to him. However, he left the place as he had some other work to do.
18. P.W. 5, Manish Kumar, is son of P.W. 1. He too stated that at about 10 A.M. he saw Risabh playing in front of his house near the Kadam tree. The house of the accused persons was one house east to his house. All of them were standing at their door. Krishna Choudhary was calling Risabh by showing him chocolate. Thereafter, the accused persons took him inside the house. As he had to go to the School, he left the premises and later on he learnt that Risabh is not traceable.
19. P.W. 6, Archana Devi, is the mother of the deceased. Her statement is on the same line as that of her mother-in-law P.W. 2. She too stated that at about 10 A.M., the accused persons were pointing towards her son Risabh who was playing near the fallen Kadam tree in front of her house. Her husband came from the shop and made queries regarding his son from the accused persons. The accused persons thereafter went away after putting 2-3 locks on their house.
20. P.W. 7, Dilip Kumar Choudhary, is the informant who stated that on 8.8.2006 at about 10 A.M. when he was at his shop, he learnt about the missing of his son and he immediately came to his house around 10.30-11 A.M. His wife and his mother narrated the entire incident to him. He made queries from the accused persons who pleaded ignorance. However, the accused persons at 12 noon hurriedly went away after putting locks on the door. He informed the Police around 4.30 P.M. on the same day and narrated the incident. The Police came to his house, made enquiries and recovered the dead body of the deceased from the roof of the house of the accused persons.
21. P.W. 8, Ram Prakash Gupta, is the Investigating Officer of the case. He states that on 8.8.2006 he was Officer-Incharge of Bochahan P.S. On information received from P.W. 7, he reached the place of occurrence along with police party. In course of search, he entered the house of the accused from the back door as the main door of the house was locked. He recovered the dead body of Risabh from the roof top of the house of the accused clad in blood wrapped in a Sujani. A rope was found tied around his neck which was slit with sharp cutting weapon. The house of the accused and the informant is intervened by one house. A Kadam tree where the boy was said to be playing was also in front of the house after a road.
22. We find from the evidence of P.Ws. 1, 2, 4, 5 and 6 that Risabh was playing near the Kadam tree in front of his house and the accused persons, whose house was only one house east to the informant�s house was standing at their door. Risabh was last seen till 10 A.M. playing near the Kadam tree. After some time he was no more seen and his dead body was recovered from the roof of the house of the accused persons. Further more, P.Ws. 1, 2, 6 and 7 claims to have seen the accused persons leaving the house at around 12 noon after putting two to three locks on their main door.
23. P.W. 8, the Investigating Officer, too stated that the house of the accused is intervened by one house, and the Kadam tree, where child was said to be playing was in front of the house of the accused. It is case of the prosecution that the dead body was recovered from the house which they claim to belong to the accused persons.
24. The appellants have not disputed the factum of recovery of the dead body from roof of the said house. However, they have disputed the ownership of the house. They stated that they have sold the house to Kushilal Choudhary in the year 2004 through registered sale deed which has been exhibited as Ext. D. It appears that they have not put any suggestion to the witnesses that they are not in occupation of the house. The suggestion to the witnesses is to the extent that two of the accused namely Chandan Choudhary and Vinod Choudhary have sold their share and are living in Delhi.
25. The appellants contended that the prosecution has not been able to prove motive in the case. They state that the prosecution witnesses have merely stated that the accused persons were having land dispute with one Kushilal Choudhary who in fact is more relative of the accused than the prosecution side. Further more, they stated that Vishwanath Choudhary has filed a Criminal Case bearing Sakra P.S. Case No. 208 of 2001 against the Ram Chandra Choudhary (P.W. 1), Jai Prakash Choudhary, Manish Choudhary (P.W. 5) and Dilip Kumar Choudhary (P.W. 7) in which charge sheet was also submitted. The F.I.R. of Sakra P.S. Case No. 208 of 2001 as well as certified copy of the charge sheet has been exhibited as Ext. A and B. On this basis the appellants state that they could not have any motive to kill the son of the informant. The prosecution on the other hand asserted that as they tried to sort out the land dispute, the accused persons became annoyed and has caused the death of deceased.
26. It is well settled proposition of law that even if motive is not established, the prosecution case cannot not be discarded on this count alone if other evidence is of an unflinching nature and unmistakably point towards the guilt of the accused persons.
27. The appellants next argued that there is no direct evidence on record and the case of the prosecution is based on circumstantial evidence, which is of a weak nature. They submitted that conviction based on weak circumstantial evidence is not sustainable in view of various pronouncements of the Hon''ble Apex Court as reported in
28. They also argue that some of the prosecution witnesses have tried to introduce story of accused persons luring Risabh by showing chocolate during trial for the first time like P.W. 1, P.W. 4 and P.W. 5. In fact, P.W. 4 has even gone to the extent of saying that he saw Risabh in the lap of Krishna Choudhary about 10 A.M. or so.
29. The accused may be correct in their submission that P.W. 4 and a few other witnesses, save and except P.W. 5, did not make any such statement before the Investigating Officer. The Investigating Officer has stated that except of P.W. 5, no one disclosed before him that accused lured Risabh by chocolate. It is equally true that P.W. 2 and P.W. 6 have not stated that accused lured Risabh by offering chocolate.
30. Furthermore, the statement of P.W. 5 that all the accused persons were standing near their door at 10 A.M. and accused Krishna Choudhary was calling Risabh by showing him chocolate, whereupon he ran towards them, where after they took him inside the house, does not stand controverted. The Investigating Officer, in his statement, too, does not deny that such a statement was made by P.W. 5.
31. However, it is noticeable that the informant (P.W. 7) stated in his fardbeyan that he had narrated the incident to the police at the Thana, where-upon P.W. 8 came to his house and recorded his fardbeyan.
32. But we do not find that any Sanha or Station diary has been brought on record, which would have given some clue to the earliest information given to the police. We are clearly of the view that none of the parties should be prejudiced on account of omission on the part of the prosecution to bring the said Station diary entry on record which would be a relevant material. The matter, as such is required to be remanded to the learned trial Court to take further evidence of the Investigating Officer so that the station diary entry may also come on record. The trial court would also provide an opportunity of cross-examination to the appellants on the further evidence, which may come on record.
33. In the result, the impugned judgment and order of conviction and sentence are hereby set aside and the case is remanded to the learned Court below with direction to examine the Investigating Officer with respect to Station diary entry and, then, to dispose of the case in accordance with law within a period of three months from the date of receipt of the Lower Court Records.
34. We have consciously refrained from making any observation on the merit of the appeal so that the learned trial Court may not feel fettered in coming to its own independent finding and may take appropriate decision afresh.
35. However, in the facts and circumstances of the case, we feel it inappropriate to direct release of the appellants from custody pending the result of the trial. The office would send back the Lower Court Records with a copy of this judgment and order.
I.A. Ansari, J.
I Agree
