Chandra Keshwar Choudhary v. The State of Bihar

another offence. Then thereafter the accused persons lit fire in the Palani of Lakhan Kahar, who happens to be their own man. Choukidar, Jagdish Yadav, Ambika Sah came and put vigilance over the situation. On the basis of the aforesaid fardbeyan, Udwant Nagar P.S. Case No. 13 of 1980 was registered and subsequently thereof investigation was taken thereupon which ultimately concluded by filing of charge-sheet leading to taking of cognizance followed with commitment and trial which ultimately concluded in conviction of the appellant/accused which happens to be the basis for filing of instant two appeals.

#5. The defence case as is evident from mode of cross- examination, suggestion, statement recorded under Section 313 Cr.P.C. is that accused persons are innocent and they have been falsely implicated in this false and concocted case. It has further been submitted that no occurrence as alleged had taken place rather the prosecution party after forming an unlawful assembly raided the house of Lakhan Kahar for realization of due amount. After apprehending some foul play, accused were called upon by the wife of Lakhan Kahar and after whose appearance, the prosecution party on their own began to fire upon the accused persons as a result of which one of the accused, Jagdish Choudhary had sustained fire arm injury. During course of aforesaid firing the prosecution party 5 themselves sustained injury as a result of which, Ramraj Choudhary died. Accused, Chandra Keshwar Choudhary had already instituted a case bearing Udwant Nagar P.S. Case No. 12 of 1980. After coming to know about the same, the instant case has been filed by way of counter blast. Also examined four defence witness in support of their plea.

#6. In order to substantiate its case, the prosecution had examined altogether nine PWs out of whom PW-1 is Lalmohar Choubey one of the injured, PW-2, Tipan Choudhary another injured as well as informant, PW- 3, Kameshwar Choudhary the FIR named witness but not an eyewitness, PW-4, Ranglal Choudhary, brother of informant, FIR attesting witness but not an eye witness to the occurrence, PW-5, Janeshwar Choudhary, not named, not an eye witness to the occurrence, PW-6, Ramnagina Choudhary, seizure witness, PW-7, Shubhdayal Choudhary, father of deceased but not an eye witness, not named in the FIR, PW-8, Bindeshwari Pd. Singh, I.O, PW-9, Dr. Akhilesh Sharma who held post-mortem as well as examined both the injured. Side by side also exhibited Ext-1, signature of PW-2, over fardbeyan, Ext-2, inquest report, Ext-3 series, signature of witnesses over seizure list, Ext-4, Fardbeyan, Ext-5, a formal FIR, Ext-6, sketch map, Ext- 6/1 note of I.O., Ext-7 series, injury report of two injured and Ext-8, post- mortem report. Side by side defence had also exhibited Ext-A, formal FIR, A/1, signature, Ext-B, written report, Ext-C, x-ray report, Ext-D, X-ray plate, Ext-E, injury report, Ext-F, bed head ticket and had examined DW, to 6 DW-3 formal witness while D-4 as material witness.

#7. Many fold arguments have been advanced on behalf of appellant-convict while assailing the judgment of conviction and sentence. The first and foremost ground is that the alleged occurrence has been shown on 25.01.1980 at about 3:00 P.M. and none of the injured nor their family members have tried to contact the police officials. It is evident from the evidence of PW-8, I.O that after registration of Udwant Nagar P.S. Case No. 12 of 1980, he came at P.O. and during inspection of the P.O. he met with injured and got Fardbeyan recorded. So submitted that remaining at place of occurrence for six hours without approaching the police as well as without seeking any medical aid makes the whole situation, un-kempt, umbrageous more particularly in the background of the facts that informant, P.W-2 had clearly stated that the condition of Lalmohar Choubey was critical and was unconscious. At this moment, It has further been added that the FIR was received at the office of Chief Judicial Magistrate on 28.01.1980 without having any explanation at the end of the prosecution. This aspect is going to suggest that the FIR is ante-dated and been registered only to make out a defence case to counter meet with Udwant Nagar P.S. Case No. 12/1980 registered at the behest of one of the appellants.

#8. Then submitted that presence of Udwant Nagar P.S. case No. 12/1980 which was registered for murder of Ramraj Choudhary along with injury of Jagdish Chaudhary makes the presence of instant case 7 unacceptable, illegal, and non recognizable in the eye of law because of the fact that for the same cause second FIR is not permissible apart from the fact that it is hit by Section 162 of the Cr.P.C. To support its plea, not only documentary evidence has been brought up on record under Ext-A to F rather DW-4 had also been examined on the fact. The PW-8, the I.O. had apart from accepting presence of Udwant Nagar P.S. Case No. 12/80 also found appellant, Jagdish Choudhary admitted to hospital wherefrom he was taken to judicial custody.

#9. Because of the fact that by consistent oral as well as documentary evidence the appellants-convict have legally conclusively brought up on record prior institution of a case at their behest and further having been admitted by the prosecution witnesses itself more particularly by PW-8 regarding admission of appellants-convict Jagdish Choudhary at the hospital, then thereafter it was incumbent upon the prosecution to explain the injury sustained by the accused. Having failure on the part of the prosecution, it traduce the conduct as well as sully prosecution version over genesis of occurrence, manner of occurrence leading to an adverse inference against the prosecution that it has not come with clean hand rather knowingly and intentionally suppressed the real manner and genesis of occurrence. The aforesaid failure on the part of the prosecution is indicative of the fact that there has been suppression of real material facts and in the aforesaid background, the judgment of conviction and sentence recorded by 8 the learned lower court happens to be perverse. To support the aforesaid