SUKHLAL BAITHA v. THE STATE OF BIHAR

Judgment

1. Appellant Sukhlal Baitha and Sri Bhagwan Baitha who have been convicted for an offence punishable under Section 302/34 of the Indian Penal Code vide judgment dated 25.08.1990 passed by Sessions Judge, Motihari in Sessions Trial No.252 of 1988 and sentence to undergo R.I. for life vide order dated 27-08-1990 have filed instant appeal.

2. The prosecution case in nutshell as per fardbeyan (Exhibit 4) of Janki Devi (P.W.4) recorded on 26.11.1987 at 06:00 P.M. at her Darwaja is that on the same day at about 04:00 P.M. his son Dilip Kumar was picking leaves from Goas of Pundeo Baitha. Her Patidar Sukhlal Baitha came and abused him on the pretext of stealing of toddy which was protested by her son over which Sukhlal Baitha Baitha slapped him. Her son came at her Darwaja weeping and narrated the event of her Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 2 husband Ramadhar Baitha. Sukhlal Baitha came there. Her husband made complain why he had assaulted his son Dilip and on account thereof both indulged in verbal dual. Then, thereafter, Sukhlal Baitha threw her husband over ground, took out knife and gave knife blow over

his head. Sukhlal was joined by Sri Bhagwan armed with Farsa , Sheo Nath Baitha, Jagan Baitha, Ram Niwas Baitha armed with faras respectively. Sri Bhagwan gave Farsa blow over head of her husband. Subsequently thereof, Sukhlal Baitha took Farsa from Ram Niwas and assaulted her husband. Sheo Nath Baitha, Jagan Baitha also assaulted him with Farsa . She tried to save her husband over which Panchiya Devi, Kunti Devi, Ram Niwas Baith caught hold her and assaulted with fists and slap. Sukhlal Baitha also chased her with Farsa as a result of which she escaped there from raising alarm. Ram Pravesh Bhagat, Ishri Bhagat, Dilip Kumar were shown as an eye witness to occurrence.

3. On the basis of aforesaid fardbeyan, Pipra P.S. Case No. 34 of 1987 was registered and after completing investigation, charge sheet was submitted followed with taking of cognizance. Because of the fact that offences wherein cognizance was taken happens to be exclusively triable by the court of Session, hence case was committed and finally concluded by the judgment impugned by which the others were acquitted while Sukhdeo Baitha, Bhagwan Baitha have been convicted in a manner as indicated above which happens to be the subject matter of instant appeal.

4. The defence case as evident from mode of cross- Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 3 examination as well as statement recorded under Section 313 of the Cr.P.C. is that of innocence and complete denial of occurrence. Further it appears that the defence had tried to suggest that on account of chequrred history of deceased Ramadhar Baitha, was murdered somewhere else by the unknown persons and on account of animosity persisting amongst both the parties, they have been falsely roped it. During course of trial three DWs were examined followed with Exhibit of relevant documents as Exhibit A, B, C, D on behalf of accused Jagan (since acquitted) on the plea of alibi.

5. In order to support its case, the prosecution had examined altogether eleven PWs out of whom P.W.1 is Shri Narayan Baitha, P.W.2 is Dalip Baitha, P.W. 3 is Raj Kishore Baitha, P.W.4 is Janki Devi, P.W.5 is Gopal Bhagat, P.W.6 is Dr. Birendra Kumar Agrawal, P.W.7 is Ram Pravesh Bhagat, P.W.8 is Raman Baitha, P.W.9 is Somari Devi, P.W.10 is Dr. T.N. Shukla, P.W.11 is Imtiyaz Ahmad. Side by side also exhibited Exhibit-1 Series Signature of witnesses over relevant documents such as inquest report, seizure list, fardbeyan, Exhibit-2 P.M. Report, Exhibit-3 Injury Report with regard to Janki Devi (P.W.4), Exhibit-4 fardbeyan, Exhibit-5 Formal FIR. So far status of witnesses are concerned, P.W.1, P.W.7, P.W.9 were declared hostile while P.W.5, P.W.8 happens to be the witness on inquest report, seizure list. P.W.11 happens to be formal in nature who had exhibited fardbeyan, formal FIR on account of non-examination of I.O. P.W.2, P.W.3 and P.W. 4 happens to be the material witness while P.W.6 Doctor had conducted Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 4 postmortem over dead body of Ramadhar Baitha. P.W.10 the another doctor who had examined Janki Devi (P.W.4). The defence had also examined three DWs, Raj Keshwar Choudhary, D.W. 2 Atma Singh, D.W.3 Suresh Prasad and had exhibited attendance register along with other relevant documents as Exhibit A, B, C, D with regard to alibi of accused Jagan (since acquitted).

6. It has been submitted on behalf of learned counsel for the appellants while challenging the judgment impugned that all the independent witness had turned hostile on account of being volte-face to prosecution. The case, as is evident, rest upon testimony of P.W. 2, 3 and 4 out of whom P.W.3 has got no presence at the spot according to fardbeyan. It has further been submitted that there happens to be admission on the part of these three witnesses having on inimical term since before. It has further been submitted that P.W.2 at the time of his examination was aged about 10 years while P.W.3 was aged about 12 years and so, their testimony, on account of inconsistency as well as on account of finding recorded by the learned lower court over their mental IQ, cannot be accepted. Not only this, from their evidence, it is also evident that there happens to be ample opportunity of being tutored to such extent that before their presentation before the court, the learned Additional Public Prosecutor had instructed them what are to be deposed by him. With regard to evidence of P.W.4, it has been submitted that her evidence appears to be full of exaggeration and embellishment as a result of which the real theme had gone intermixed therewith in such manner Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 5 that it happens to be difficult to separate the truth. Further submitted that from her evidence the manner of occurrence as well as place of occurrence has become inconsistent with her earlier version as per fardbeyan Exhibit 4, hence she also become unreliable, untrustworthy, un-credible. It has further been submitted that there happens to be no dispute with regard to murder of deceased Ramadhar Baitha. But the manner where under prosecution had alleged the appellants responsible for the same, is beyond rectude. Apart from the fact that due to non- examination of I.O. the defence had found itself to be prejudiced as failed to bring relevant exaggerated part of evidence of respective P.W.8 as well as the controversy surrounding over place of occurrence.

7. At the other hand learned Additional P.P. while supporting the finding recorded at by the learned lower court submitted that the learned lower court had scrutinized the evidence minutely and meticulously after separating the grain from chaff and acquitted other co- accused while concluded against the present appellants holding guilty for causing death of deceased Ramadhar Baitha. It has further been submitted that each and every aspect had properly been considered by the learned lower court including the factum of non-examination of I.O. Also submitted that there is no exception prescribed under Evidence Act to discard testimony of child witness, however a rule of caution has been led. It has further been submitted that even the testimony of single witness if pose confidence can be accepted and form a basis for convicting the accused. The law does not require quantity rather it Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 6 requires quality. In the aforesaid background, it has been submitted that P.W.4 had candidly detailed the manner of occurrence whereunder her husband was done to death by the appellants by means of sharp cutting weapon at the place which had properly been identified by P.W.4. So, it has been submitted that prosecution had succeeded in proving the genesis of occurrence, the manner of occurrence and the place of occurrence. Consequent thereupon, the finding recorded by the learned lower court is fit to be confirmed.

8. Now coming to the evidence P.W.1 disowned to have any knowledge with regard to facts of the case and therefore was declared hostile that happens to be status of P.W.7, P.W.9. P.W.2, P.W.3 happens to be minor sons of deceased claiming themselves to be eyewitness of occurrence. P.W.4 is informant. P.W.5 is a witness over inquest as well as seizure of weapon. P.W.6 is doctor. P.W.8, P.W.11 are formal witness, P.W.10 is doctor who examined P.W.4.

9. To begin with the prosecution case, first of all the evidence of P.W.6 Dr. Birendra Kumar Agrawal is taken into consideration who had conducted postmortem over the dead body of Ramadhar Baitha on 17-11-1987 at 03:25 P.M. and found following ante mortem injuries. (i) (ii) One incised would 4”x2”x bone deep with cutting scalp bone over back of left side of scalp. One incised would 8”x2”xbone deep with cutting of scalp bone over whole would over back of scalp from the level of one ear to another ear with loss of considerable brain substance in the cranial cavity. Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 7 (iii) One incised would 5”x1 ½”. Bone deep over back of neck with cutting of upper survical vertibra i.e. Attas and axis with cutting of some parts of a pinal cord. (iv) One incised would 1”x1/2”x1/4” over left side of back in the upper part. (v) One incised would 1 ½”x1”x1/4” over middle part of left side of back. (vi) One incised would 1”x1/2”x1/4” over left side of back in middle and lateral side. (vii) One incised would 1 ½”x1/3”x1/4” over upper part of left buttock. (viii) One incised would 1”x1/3”x1/2” over left elbow. (ix) One incised would 2”x1/2”xbone deep with cutting of ulna bone over upper part of left forearm. (x) One incised would 1½”x1/3”x bone deep with cutting of bone at proximal part of right palm near wrist. (xi) One incised would 1½”x1/4”x bone deep with cutting of bone over medial side of right plam. (xii) One incised would ¾”x1/2” with cutting of distal phalax over right little finger. (xiii) One incised would 3”x1/4”x1/6” over distal part of right palm. (xiv) Two incised wounds about 1”x1/2”x cutting of bone over right ring and middle finger. (xv) One incised would 3½”x1½”x skin deep over back of right thigh in lower part. (xvi) Three superficial incised wounds side by side over front of left side of chest about 2”x1/8”x1/8”. In the opinion of doctor, death was within 36 to 48 hours since the time of PM.

10. Virtually there happens to be no cross-examination to the extent of discarding the finding of the doctor. Therefore, death by means of sharp cutting weapon is found proved. Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 8

11. P.W.2, Dalip Baitha, son of deceased who was examined on 18.03.1989 on which date his age was estimated as 10 years that means to say on the alleged date of occurrence he was approximately 8 years. There is no positive remark of the learned lower court with regard to his mental IQ. During his examination-in-chief he had disclosed that on the alleged date and time of occurrence after collecting leaves from road while he was keeping it in bag, Sukhlal came and said that you have stolen toddy. On his denial he slapped. He came to his house and narrated the event to his father. His father inquired from Sukhlal why he had slapped him and on account thereof, both of them indulged in verbal altercation followed with scuffle. During midst thereof Sukhlal gave knife blow over head of his father. Sukhlal raised alarm attracting Sri Bhagawan, Ram Niwas, Jagan, Sheo Nath who assaulted his father. They were armed with Garasa and Garasi. When his mother intervened into the matter, she was assaulted by Kunti Devi, Panchiya Devi, Ram Niwas Baitha. His father died instantaneously. During cross-examination he had disclosed that he had met with Government Advocate who had divulged what to speak before deposing in Court. He further said that Sukhlal happens to be his uncle. They were on inimical terms since before the occurrence. Then had disclosed that at the time of occurrence his father was not armed. He also said that Sukhlal was armed with Garasa. While quarrel was going on amongst his father along with Sukhlal, Sri Bhagwan was present there but was empty hand. He had further disclosed that Sheo Nath, Ram Niwas Sukhlal came after sustaining of Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 9 injury by the father. He cannot say on which part of body of his father, others have assaulted. Then had disclosed that Sukhlal had made self inflicted injury over his person. Para-7 there happens to be contradiction to the effect that he had not named the other co-accused before the police. So from his evidence it is evident that even on the date of his examination he was prompted. He had disclosed during course of cross- examination regarding assault by Garasa by Sukhlal while exonerated the others including Sri Bhagawan. Not only this he had also divulged regarding presence of injury over Sukhal but with explanation as self inflicted.

12. P.W. 3 happens to be another son of deceased Ramadhar Baitha. The Court had assessed his age as 12 years while he himself disclosed his age as 9 years. Again the court had adopted same process without recording any finding over his mental IQ. This witness is not at all named in the First Information Report. In chief had said that on the alleged date and time of occurrence while he was at his Darwaja. Sukhlal Baitha came abused his mother which was protested by his father on account of which Sukhlal threw his father on ground and pierced knife at his head. On an alarm raised by Sukhlal, Shri Bhagwan, Jagan, Sheo Nath, Ram Niwas armed with farsa and Garasa came and assaulted his father on account of which he died. Then thereafter they escaped there from. Before their departure Kunti Devi, Panchiya Devi and Ram Niwas Baitha assaulted his mother. During cross-examination he had disclosed that at the time of commission of occurrence lamps were already Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 10 lightened. Then had disclosed that Marpit took place by the side of his Darwaja. Then he disclosed that at the time of Marpit only Sukhlal and his father were present and none else. His father sustained injuries at ten places. Then had disclosed that even after assault none had come. Then he again disclosed that altogether five persons had assaulted his father with farsa. At para 5 there happens to be contradiction with regard to disclosure of names of accused being an assailant. At para 6 had said that Sukhlal had given only one Chura blow. He had not seen any injury over the person of Sukhlal left Chhura while they left the place of occurrence. His mother had already arrived at the place of occurrence before the occurrence. In para-7 had disclosed that his mother was assaulted before assault over person of his father. Then had disclosed that his mother had informed Chowkidar Dafadar who had arrived at the place of occurrence. So from his evidence, it is evident that he had contradicted the evidence of P.W.2 who had disclosed regarding presence of injury over the person of Sukhlal. In likewise manner there happens to be inconsistency with regard to the assailant as well as manner of assault.

13. P.W.4 happens to be Janki Devi. She has disclosed that on the alleged date and time of occurrence while she was at her Darwaja, her son Dilip came and disclosed that Sukhlal had assaulted him on road. Dalip had also narrated the incident to his father who was present at the Darwaja. Then thereafter her husband inquired from Sukhlal. Sukhlal had disclosed that Dalip had gone to steal toddy and over which verbal dual ensuing wherein Sukhlal threw her husband on ground and then Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 11 gave a Chura Blow. Sri Bhagwan, Sheo Nath, Jagan, armed with farsa came on call raised by Sukhlal and began to assault her husband. When she gone to rescue her husband, Panchiya Devi, Kunti Devi, Ram Niwas caught hold her and assault her. Her husband died instantaneously. Then had disclosed that Sukhlal was acquitted in a murder case which was drawn for committing murder of her father-in-law Pobhari Baitha for which a feast was organized wherein they were also invited but as declined to participate, therefore this occurrence has been committed. She further disclosed that police had come at 06:00 P.M. before whom she had given her fardbeyan.

14. During cross-examination she had disclosed that accused Sukhlal and Khobhari happens to be full brother. Her husband is son of Khobhari. She along with accused Sukhlal are residing in same Aagan. Sri Bhagwan and Ramadhar are sons of Sukhlal. Kunti is daughter of Sukhlal while Panchiya is his wife. Sheo Nath and Jagan belongs to different family and reside at different place. Para-14 had disclosed that she had sustained injury over back, chest. She had sustained single blow of lathi. She had further disclosed that her husband was fighting four or five cases at Motihari court. At para-8 had said that at the time of occurrence Dalip was aged about four years and six month. At para 10 had disclosed that at the time of occurrence none was present at the place of occurrence. Then had disclosed in para-11 that at the time of occurrence she along with her son Dalip and Raj Kishore were present there. Sukhlal had given single knife blow over head of her husband. Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 12 Subsequently, after taking farsa from the hand of Ram Niwas, he gave three or four blow but on which part she cannot say because at that very time she was also subjected to assault. Sri Bhagwan had given 15 blow of farsa. Jagan and Sheo Nath having been armed with farsa have also arrived there. Therefore, from her evidence it is evident that she had belied the evidence of P.W.2 and P.W.2 so far manner of occurrence is concerned. Not only this she had kept mum over injury sustained by Sukhal as disclosed by P.W.2.

15. P.W.5 had simply exhibited inquest report as well as had also exhibited his signature over seizure list which was prepared by the I.O. on account of seizure of blood stained knife, blood stained earth, blood stained farsa. In cross-examination had disclosed that farsa was kept at one place.

16. P.W.10 happens to be the another doctor who had examined Janki Devi on 17.11.1981 and found pain over back of neck, back, left shoulder, right hip. There was no sign of any injury. I.O. has not been examined.

17. Apart from inconsistency having in the evidence of P.W.2 and 3 there is complete absence of assessment and findings of the court with regard to mental equilibrium of these two witnesses, who were admittedly minor. From the evidence of P.W.4 it is borne out that P.W.2 at the time of alleged occurrence was only aged about 4 and ½ years. P.W.3 happens to be even younger than P.W.2 so certainly at the time of occurrence he would have been at least aged about 3 and ½ years and Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 13 that happens to be reason behind that P.W.3 was not named in the FIR. It is also a matter of concern whether at the time of alleged occurrence they were able to perceive the occurrence and keep it imprinted till the day of their deposition. With regard to P.W.2, the fardbeyan suggests that his presence was subsequently added in different handwriting. Additionally, the Apex Court has repeatedly laid down law with regard to the extent and manner in which the evidence of child witness is to be examined and relied upon. In a recent decision reported in (2011) 4 SCC 786 (State of M.P. Versus Ramesh and Anr.) after referring to earlier decisions of the Apex Court in para-7 to 13, the principle has been summarized in paragraph no.14 in the following words:- “14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and thee is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.”

18. Thus in the light of aforesaid well settled principle while applying to the facts and circumstances of this case, it is evident that having an opportunity of being tutored as accepted by P.W.2 himself and further, having absence of P.W.3 from its root, apart from having improvement and embellishment having occurred found to be material Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 14 coupled with non-examination of I.O., make their evidence unacceptable in the eye of law.

19. Now coming to the evidence of P.W.4. Her evidence is to be taken into account in the background of absence of I.O. From her evidence, it is evident that both the parties were residing in the same house. It is also evident that she had firstly disclosed in examination-in- chief that Shuklal had given one knife blow after throwing her husband on ground on his head and then thereafter Sri Bhagwan, Sheo Nath, Jagan came on his alarm armed with farsa by which they are said to have assaulted the deceased while during cross-examination she had controverted that after snatching farsa from the hand of Ram Niwas he had inflicted 3 or 4 farsa blow. She had further stated that Sri Bhagwan had given 15 farsa blow over the person of deceased. Thus after having minute observation of the prosecution case, it appears that the same has been developed gradually in such a manner as to fit in and suit with the finding of the medical evidence which the defence has failed to properly bring on record for want of examination of I.O. by the prosecution. Hence on this score interest of accused is found to be definitely prejudiced. Not only this, for want of non-examination of I.O., the relevant portion of the FIR whereunder presence of P.W.1 has been brought as an eye witness has laso remained un-explained. All these having cumulative effect would certainly effect upon prospect of the prosecution case.

20. In the aforesaid background as well as taking into account Patna High Court CR. APP (DB) No.388 of 1990 (8) dt.13-07-2012 15 the inconsistency, improbability, improvement, embellishment in the evidence of the witnesses do adversely affect upon the prosecution case from its root and consequently it has to be held that the prosecution has failed to proves the charges against the appellants beyond reasonable doubt. In that view of the matter we are unable to concur with the findings and the conclusion recorded by the trial court. Thus, the appeal is allowed and impugned judgment of conviction and sentence is set aside. The appellants are on bail and would accordingly stand discharged of their liabilities. (Mihir Kumar Jha, J.) (Aditya Kumar Trivedi, J.) Dated 13th July, 2012 Patna High Court Prakash Narayan