1. The present appeals have been filed under Section- 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the judgment of conviction dated 12.06.2015 and order of sentence dated 16.06.2015 passed by the learned Ad hoc 1st Additional Sessions Judge, Bagaha in Sessions Trial No. 390 of 2004, arising out of Laukaria P.S. Case No. 24 of 2003, whereby the appellants have been convicted for commission of the offences punishable under Sections- 302/149 of I.P.C. and they have been sentenced to undergo life imprisonment and a fine of Rs. 20,000/- each for commission of the offences punishable under Section- 302/149 of I.P.C. and, in default of payment, they have been sentenced to undergo further imprisonment for six months each.
2. Since both the appeals arise out of the common judgment and order, they are being heard together and are being disposed of by this common judgment.
3. Heard Mr. Ramakant Sharma, learned Sr. Advocate assisted by Mr. Avinash Kumar for the appellants and Mr. Sujit Kumar Singh, learned A.P.P. for the respondent-State in Cr. Appeal (D.B) No. 671 of 2015. Also heard Mr. Anand Kishore Choudhary, learned counsel for the appellant and Mr. S. N. Prasad, learned A.P.P. for the respondent State in Cr. Appeal (D.B.) No. 868 of 2015.
4. The brief facts leading to the filing of the present appeals are as under:
“Informant Runa Devi gave her statement on 27.06.2003 before the Jamadar of Bagaha Police Station, at the Sub-Divisional Hospital, Bagaha stating that at about 12:00 noon, her daughter Babita Kumari, aged about 10 years, came home and informed her that 1. Dhruv Chaudhary, aged 50 years, 2. Paras Choudhary, 3. Vishwanath Chaudhary, aged 35 years, 4. Lala Chaudhary, aged 45 years, all the four sons of Devi Chaudhary, 5. Suresh Chaudhary, aged 25 years, 6. Sadhu Chaudhary, aged 22 years, 7. Sakaldev Chaudhary, aged 20 years, 8. Kapil Chaudhary, aged 18 years, all the four sons of Dhruv Chaudhary, 9. Suresh Chaudhary, 10. Prabhavati Devi, wife of Devi Paras Chaudhary, 11. Chanwa Devi and 12. Kishoriya Devi are uprooting the paddy sprouts (Bichra) from her field. On receiving such information given by her daughter, she, her husband Shankar Chauhan and nephew Raghunath Choudhari, who lives in her village, went to her farm and saw that 1. Prabhavati Devi, wife of Paras Chaudhary, 2. Chanwa Devi, wife of Dhrup Chaudhary, and 3. Kishoriya Devi, wife of Vishwanath Chaudhary, were uprooting the paddy sprouts in her field, located about 1 kilometer west of her village and 4. Dhrup Chaudhary, 5. Paras Chaudhary, 6. Vishwanath Chaudhary, 7. Lala Chaudhary, 8. Suresh Chaudhary, 9. Sadhu Chaudhary, 10. Sakaldev Chaudhary, 11. Kapil Chaudhary and 12. Suresh, brother-in-law of Dhruv Chaudhary, were standing near her field armed with sticks, rods, spears, barchhis and guns. When her husband objected, on the instigation of Dhruv Chaudhary and Suresh Chaudhary all the accused named above surrounded him and started assaulting him. Her husband ran towards the east, but after covering some distance, fell into the drain filled with water. When her husband fell down, all the miscreants surrounded him from behind and assaulted him with sticks, rods, spears, barchhis and garansas and seriously injured him and broke both of his legs. When she started crying and shouting for help, her villagers Khanjachi Chaudhary, Ram Vilas Chaudhary, Yogendra Yadav, Subhash Bhar, Rameshwar Chaudhary and her son-in-law Komal Chaudhary went to her husband, but they also left the place under the impression that her husband was almost dead. She along with her family members brought her husband, who had fallen unconscious, to the Sub-Divisional Hospital, Bagaha for treatment and, after a short while, he succumbed to the injuries during treatment.”
5. After filing of the F.I.R., the investigating agency carried out the investigation and, during the course of investigation, the Investigating Officer recorded the statement of the witnesses and collected the relevant documents and thereafter filed the charge-sheet against the accused. As the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions under Section-209 of Cr.P.C. where it was registered as Sessions Trial No. 390 of 2004.
6. Mr. Ramakant Sharma, learned senior counsel for the appellants in Cr. Appeal (D.B) No. 671 of 2015, at the outset, submits that appellant No. 1, namely Dhurup Chaudhary @ Dhurb Chaudhary @ Dhrub Chaudhary and appellant No. 4, namely Lala Chaudhary have expired during the pendency of the appeal.
6.1. Mr. Anand Kishore Choudhary, learned counsel for the appellant in Cr. Appeal (D.B.) No. 868 of 2015 submits that the sole appellant Suresh Chaudhary has expired during the pendency of the appeal.
7. In view of the above submissions, Cr. Appeal (D.B) No. 671 of 2015 stands abated qua appellant Nos. 1 and 4 and Cr. Appeal (D.B.) No. 868 of 2015 stands abated.
8. Mr. Ramakant Sharma, learned senior advocate appearing on behalf of the appellants in Cr. Appeal (D.B.) No. 671 of 2015 submits that, as per the case of the prosecution, fardbeyan was given by the informant Runa Devi, P.W. 7 before the concerned police officer in Sub-divisional Hospital, Bagaha. It is further submitted that, as per the fardbeyan, the informant got the information from her daughter, namely Babita Devi, aged about 10 years when she came running from the agriculture field to the house that the accused persons named above are uprooting the paddy seedlings (Bichra) from her field. After getting the said information, as per the case of the prosecution, the informant went with her husband Shankar Chauhan (deceased) and nephew Raghunath Choudhari, who lives in her village to her farm and saw the accused persons present there. Thereafter, all the accused chased her husband who fell down into the ditch and thereafter all the accused gave blows with the weapons they were carrying.
8.1. At this stage, it is submitted that P.W. 6, Babita Kumari, was aged about 20 years on the date of giving her deposition and she has not supported the case of the prosecution and she was declared hostile. Further, P.W. 7, i.e. the informant, who is the wife of the deceased, has specifically stated in her examination-in-chief itself that her statement was recorded by Darogaji at her door step. However, from the fardbeyan, it is revealed that the same was recorded at S.D.H., Bagaha. Learned senior counsel further submits that during the cross-examination, the informant, P.W. 7, has specifically admitted that on the date of occurrence she was at her house and her husband went towards the agriculture field and thereafter she came to know from the village people that some miscreants were assaulting her husband. However, she could not identify the miscreants/assailants. She had also submitted that what has been written in the fardbeyan was not read over to her. Learned senior counsel urged that the informant herself has not fully supported the case of the prosecution and, surprisingly, she was not declared hostile. It is also submitted that even F.I.R. is not duly proved. P.W. 9, Banarasi Chaudhary, who is an advocate clerk, produced the fardbeyan. However, in his cross- examination he has specifically admitted that the said fardbeyan was not written in his presence. Learned senior counsel would thereafter contend that, in the present case, the I.O. has not been examined by the prosecution, which has caused serious prejudice to the case of the defence. It is contended that in the present case, wherein P.W. 7, informant, has specifically deposed before the Court that what was written in the fardbeyan was not read over to her and because of the enmity with the accused, the village people have given their names, the prosecution was obliged to examine the I.O. so that he can be cross-examined by the defence. Thus, in the present case, serious prejudice has been caused to the defence due to non- examination of the I.O.
8.2. Learned senior advocate, therefore, urged that when the prosecution has failed to prove the case against the appellants beyond reasonable doubt, the impugned judgment of conviction and order of sentence passed by the learned Trial Court against the appellants is not sustainable in the eye of law. Hence, the same be quashed and set aside and the present appeal be allowed.
9. On the other hand, learned Additional Public Prosecutor Mr. Sujit Kumar Singh submits that two independent witnesses have supported the version of the prosecution and, therefore, merely because the informant and her daughter have not supported the case of the prosecution, benefit of the same may not be given to the accused. It is also contended that the doctor who had conducted post mortem of the dead body of the deceased, has specifically deposed with regard to number of injuries sustained by the deceased and thereby the prosecution has proved the homicidal death of the deceased. Learned A.P.P., therefore, urged that the present appeals may not be entertained.
10. We have considered the submissions canvassed by the learned counsels for the parties. We have also perused the evidence of prosecution witnesses and also perused the documentary evidence exhibited.
11. At this stage, we would like to appreciate the relevant extract of entire evidence led by the prosecution before the Trial Court.
12. Before the Trial Court, prosecution examined 9 witnesses.
13. P.W. 1 Ram Vilas Choudhary has stated in his examination-in-chief that the incident took place about 7 years ago. The time was 11-12 in the day. He was grazing buffaloes. He saw that Dhruv Chaudhary, Lala Chaudhary, Paras Chaudhary, Vishwanath Chaudhary, Suresh Chaudhary, Sadhu Chaudhary, Kapil Chaudhary and Suresh Chaudhary, armed with sticks and spears, were getting the paddy seedlings cut from Shankar Chaudhary's field. Shankar Chaudhary's wife Rupa Devi and son-in-law Komal Chaudhary stopped them from cutting the seedlings. At this, they said that the issue will be resolved in the Panchayat. When they reached south of the Chitvan tree, all the above accused together started beating Shankar Chaudhary, due to which Shankar Chaudhary fainted. His wife Rupa Devi and son-in-law Komal Chaudhary came to save him at which the accused started beating them too. After that the village people intervened. The accused, under the impression that Shankar was dead, fled away. Shankar Choudhary was being taken to Bagaha hospital but he died on the way. He has identified accused Dhruv Chaudhary, Paras Chaudhary, Vishwanath Chaudhary, Sadhu Chaudhary and Kapil Chaudhary, present in Court and has claimed to identify others by face.
13.1. In his cross-examination, he has stated that his statement was recorded before the police in which he had stated that all the accused, armed with sticks and spears were getting the paddy seedlings cut from Shankar Chaudhary's field. He had also stated that when they moved a little further towards south of the Chitvan tree, all the accused together started beating Shankar Chaudhary. When his wife Rupa Devi and Komal Chaudhary went to rescue him, the accused started beating them too. He had told the inspector that Shankar Chaudhary died on the way. He has denied the suggestion that he did not tell the above aspects to the inspector. He has stated that he cannot tell the area of the place where the fight took place, but he can describe its boundaries. There was already a land-dispute going on between the parties. There was no case pending against him, but after this incident, the accused filed a case of violence against him in which he had to go to jail. He has further stated that blood had fallen on the ground from the ear of the deceased. The land at the crime scene was fallow. A little blood had fallen at a distance of four to eight fingers. He had not re-visited the spot. He has also stated that regarding the incident of the same day, accused Kapil Chaudhary has filed a case of violence against his son, his brothers-in-law and others in the police station, the charge-sheet for which has been filed. He has further stated that it is not true that the land on which the paddy seedlings were grown was acquired by the father of the accused and due to enmity, Shankar Chaudhary and others beat up the accused side. It is not true that no incident like what he has stated had actually happened and he was giving false testimony due to past enmity.
14. P.W. 2 Rameshwar Choudhary has stated in his examination-in-chief that the incident took place about 7 years ago at 12:00 noon. At that time he was cutting grass at a distance of three to four feet from the place of incident. He saw that Dhruv Chaudhary, Paras Chaudhary, Lala Chaudhary, Vishwanath Chaudhary, Sadhu Chaudhary, Suresh Chaudhary, Kapil Chaudhary, Sakaldev Chaudhary, Dheeraj Chaudhary, Rajan Chaudhary and Manjeshwar Chaudhary were cutting the paddy seedlings of Shankar Chaudhary. Dhruv Chaudhary's in- laws were standing under the Chitvan tree with 10-11 men. Shankar Chaudhary came and stopped them from cutting the paddy seedlings. At this, the accused persons started assaulting him with spears, axes, lances and sticks. Shankar Chaudhary fell down there and became unconscious. After that the accused left the place. He, Shankar's son-in-law Komal Chaudhary, Shankar's daughter Babita and Shankar's wife Rupa Devi brought Shankar Chaudhary's body home by hanging him. From there they took him to the hospital. He was alive when they took him by hanging him. He died during treatment in Bagaha hospital. The reason for the incident was a land-dispute between the parties for which a case was already going on between Shankar Chaudhary and Dhruv. Before the incident, the accused had beaten him up for taking the side of Shankar. He claims to identify all the accused by face, whether present in court or not.
14.1. In his cross-examination, he has stated that witness Ramvilas Chaudhary is his full brother who has already deposed in this case. He has further stated that his statement was recorded in presence of Darogaji wherein he had stated that Dhruv Chaudhary, Paras Chaudhary, Lala Chaudhary, Vishwanath Chaudhary, Sadhu Chaudhary, Suresh Chaudhary, Kapil Chaudhary, Sakaldev Chaudhary, Dheeraj Chaudhary, Raj Chaudhary, Manjeshwar Chaudhary were cutting the paddy seedlings of Shankar Chaudhary. Dhruv Chaudhary's in-laws were standing under the Chitvan tree with 10-11 men. He had also stated that Shankar Chaudhary came and stopped from cutting the paddy seedlings. He admits to have stated that accused had also taken axes (Farsa). He had told the inspector that Shankar Chaudhary's dead body was brought home by him, Shankar's son-in-law Komal Chaudhary, his daughter Babita and wife Roopa Devi and from there they took him to the hospital. However, he had not told the inspector that before the incident, accused had beaten him up for taking the side of Shankar. He has further stated that he had not gone to the hospital. He had told the S.P. and the inspector about the incident. The inspector had come to Shankar Chaudhary's door. He took statements of all of them there. The inspector had first taken the statement of Shankar's wife. Before he left, the Inspector had taken Shankar Chaudhary's statement. He has further stated that prior to this case, there is a case going on between him and accused which is still pending. He has denied the suggestion to have given false testimony against the accused because of previous enmity.
15. P.W. 3 Brajesh Choudhary has stated in his examination-in-chief that the incident took place about 7 years ago. The time was 12-1 pm. He had gone to the field with his father Shankar Chaudhary where the seedlings were planted. He saw that accused Dhruv Chaudhary, Vishwanath Chaudhary, Paras Chaudhary and Lala Chaudhary were cutting the seedlings and their four sons, namely Sadhu Chaudhary, Suresh Chaudhary, Kapil Chaudhary, Sakaldev Chaudhary, were also there. They asked them as to why they were cutting the seedlings. There were some other people with them. The accused replied that the seedlings were theirs. His father claimed the seedlings to be his. On this, the accused persons started beating his father Shankar Chaudhary. Kapil Chaudhary had a barchhi in his hand. Dhruv Chaudhary had an axe in his hand, Paras had a stick, Vishwanath Chaudhary had a stick, Lala Chaudhary had a stick, Sadhu Chaudhary had a stick, Sakaldev Chaudhary had a stick, Suresh Chaudhary was carrying a stick. Suresh Chaudhary of Sukhawari village was also carrying a stick. All these people thoroughly beat up Shankar Chaudhary and injured him. Besides the above mentioned people, Chanva Devi, Prabhavati Devi and Kishori Devi were also there. Kamla Yadav, Joginder Yadav, Subhash Rai, Kamal Choudhary, Ramvilas Choudhary and Rameshwar Choudhary also witnessed the incident. Under the impression that his father was dead, they left his father and ran away. After that Subhash Rai, Ram Vilas Chaudhary, Rameshwar Chaudhary and his brother-in-law Kamal Chaudhary, his mother together brought Shankar Chaudhary home. After that they loaded him on a tyre cart and took him to the Government Hospital, Bagaha where he died during treatment. He has identified accused Paras Chaudhary, Dhruv Chaudhary, Vishwanath Chaudhary and Lala Chaudhary present in court. He claims to identify others by face.
15.1. In his cross-examination, he has stated that only he and his deceased father went to the farm from home. No one else went with them. They did not meet anyone from the village on the way. No one came from the village after they reached there. When they reached the farm, there were people from the village already present there, but he cannot tell their names. He has stated that he had told the inspector in his statement that both the accused named Suresh had sticks in their hands. Ram Vilas Chaudhary was present at the scene of the incident. Subhash Rai, Ram Vilas, Rameshwar, Kamal Chaudhary and his mother brought Shankar home and then took him to the hospital in a tyre vehicle. He has further stated that at the time of the incident he had gone to school to study. The people of the village went to the school and told him that his father was murdered. During those days, kidnappings and murders were being carried out on a large scale by miscreants in their area. There was a long standing land-dispute between the accused and his father and grandfather. Due to the enmity over the same land, this case was filed against the accused. When he came home, he saw that the villagers had brought his father's body and were preparing to take it to the hospital.
16. Depositions of P.W. 4 Suvash Bhar, P.W. 5 Kamal Chaudhary and P.W. 6 Babita Devi need not be examined and detailed here as they have not supported the prosecution case and have been declared hostile by the prosecution.
17. P.W. 7 Runa Devi has stated in her examination-in-chief that she is the informant in the present case. This incident took place about 9 years ago at 11 o'clock in the day. Paddy crop was sown in her field. When the crop was ready, Dhuv Chaudhary, Suresh Chaudhary, Lala Chaudhary, Vishwanath Chaudhary, Paras Chaudhary, Sakaldev Chaudhary, Kapil Chaudhary, Suresh Chaudhary were getting the paddy crop harvested from her field. Her daughter Babita informed her about this. Then she and her husband went to the field. The accused started quarreling. Thereafter they started assaulting her husband with sticks and other weapons. Thereafter the accused ran away. When the people of the village gathered, they brought her husband by hanging him and he was taken to the hospital at Bagaha. He was treated there, but he died during the course of treatment. The police inspector recorded her statement at her door. He read over the statement to her and she put her thumb impression on the statement. She recognizes all the accused. She has identified accused Dhruv Choudhary, Vishwanath Choudhary, Lala Choudhary and Paras Choudhary, present in the court.
17.1. In her cross-examination, she has stated that Devi Chaudhary has four sons. All the four are accused in this case. Ram Kelas Chaudhary, Rajeshwar Chaudhary and Khajanchi Chaudhary of her village are full brothers. Accused have enmity with them from past and a criminal case of violence between them is pending. She was at home on the day of the incident. Her husband had gone to the field. She heard the villagers shouting that her husband was being beaten up by miscreants. She also rushed to her field. The villagers also went there. She did not recognize the miscreants. The village people helped the inspector draft the fardbeyan upon which the inspector took her thumb impression. The contents of the fardbeyan were not read over to her. She has specifically stated that since the village people were on inimical terms with the accused, they gave their names as accused. During those days, miscreants off and on committed kidnapping and murder.
18. P.W. 8 Dr. Ashok Kumar Tiwari has deposed that on 20-06-2003, he was posted as Medical Officer at Sub- Div. Hospital, Bagaha and he conducted post mortem examination of Shankar Chauhan S/o Dhuna Chouhan, brought and recognized by Chaukidar Ramdeo Ram of Laukariya P.S. and found the following:---
"1. (i) Average built- Rigor mortes in head and upper limb also started in lower limb.
ii) Lacerated wound- In mid of head vertically 4" x 1/4" scalp deep, red.
(ii) Lacerated wound- Over head in the posterior parietal region horizontal 4" x 1/4" x Scalp deep, red.
(iv) Second, third and forth ribs on left side of illegible were broken on mid clavicular line.
(v) Stomach filled with digested food particles.
(vi) Lacerated wound over lip ½" x ¼" x ¼" red.
(vii) Abrasion over right form 4" x 1/4" x 1/6" red.
(viii) Abrasion over left form 3" x 1/4" x 1/6" red.
(ix) Lacerated wound over mid of left leg interiorly over middle part 5" x ½" x ¼" horizontal.
(x) Lacerated wound over mid of right leg interiorly in the middle portion 4" x 1/2" x ¼” horizontal.
(xi) Lacerated wound over lower part of left leg vertically in lower third 6"x ¼" x bone deep.
(xii) Fracture of left libia and fibula compound fracture in lower third portion.
2. All findings are ante mortem in nature. Cause of death is shock due to above injuries causing cardio pal (illegible) arrest. Time since death within 12 to 16 hours.
3. He has further identified the post mortem report to be in his pen and writing and bearing his signature.
18.1. In his cross-examination, he has stated that he did not find any bleeding wound. Alleged injuries as mentioned above may be sustained by fall on hard substance. Most of the injuries are on the left portion of body. He has mentioned rigor mortis and, therefore, time since death has been given. For developing stage of rigor mortis is 6 to 12 hour in winter season, in summer it starts within 6 hours and up to 12 hours in entire body. In summer rigor mortis full developed within 12 hours.
19. P.W. 9 Banarasi Chaudhary has stated in his examination-in-chief that he is Chief Clerk at Mauza & P.S. Pipariya, distt. West Champaran. Formal FIR of Laukaria Police Station Case No. 24/3 is in the handwriting and signature of Anmol Kumar whom he recognizes (Exhibit-2). Its FIR is in the handwriting and signature of Chandeshwar Rai (Exhibit-2/1).
19.1. In his cross-examination, he has stated that he did not get the paper written in front of him. The inspector wrote it.
20. We have considered the arguments canvassed by the learned counsels appearing for the parties, re-appreciated the entire evidence led by the prosecution as well as defence and perused the trial court record.
21. From the evidence led by the prosecution, it would emerge that as per the F.I.R., i.e. the 1st version of the informant, her daughter Babita Devi, aged about 10 years, came home and informed her about the accused persons cutting the paddy seedlings from her agriculture field. However, from the deposition given by P.W. 6, Babita Devi, it appears that at the time of giving deposition she was aged about 20 years. She has not supported the case of the prosecution. Therefore, she was declared hostile. Even P.W. 7, informant, has stated that her statement was recorded at her door step. Thus, from the deposition of the informant, it can be said that because of the enmity with the village people, names of all the accused have been falsely given. Thus, from the aforesaid it can be said that the informant has also not fully supported the case of the prosecution and there are major contradictions, inconsistencies, discrepancies in the story put forward by the prosecution. It would further reveal that P.W. 9, who is working with the advocate, has produced the F.I.R. at the time of his examination- in-chief. However, during cross-examination, said witness has stated that the F.I.R. was not written in his presence. It is most important to mention here that the prosecution has failed to examine the I.O. and it is the specific contention taken by the learned senior advocate for the appellants that because of the non-examination of the I.O., serious prejudice has been caused to the defence.
22. We are of the view that the said contention is required to be accepted in the facts of the present case. Firstly, because the informant did not fully support the case of the prosecution and she had specifically deposed that contents of the fardbeyan were not read over to her by the Darogaji and because of the enmity with the village people, names of the all the accused have been falsely mentioned in the fardbeyan. Even P.W. 6 Babita Kumari, on whose information the informant and her husband went to the place of occurrence, has not supported the case of the prosecution and, therefore, looking to the facts of the present case, it was the duty of the prosecution to examine the I.O. However, learned A.P.P. has failed to point out any justifiable reason for non-examination of the I.O. Thus, we are of the view that prejudice has been caused to the defence because of non-examination of the I.O. At this stage, we would like to refer the judgment of Hon’ble Supreme Court in the case of Lahu Kamlakar Patil & Anr. Vs. State of Maharashtra, reported in (2013) 6 SCC 417, wherein the Hon’ble Supreme Court has observed in para- 18 as under:-
“18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non- examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] , this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153 : 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar [(2001) 6 SCC 407 : 2001 SCC (Cri) 1148] , Rattanlal v. State of J&K [(2007) 13 SCC
18 : (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of Jharkhand [(2008) 16 SCC 561 : (2010) 4 SCC (Cri) 50] , has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution.”
23. From the aforesaid decision, it can be said that non-examination of the Investigating Officer is not fatal to the prosecution-case, especially when no prejudice is likely to be suffered by the accused. However, from the aforesaid evidence led by the prosecution in the present case, we are of the view that the present case is one where the Investigating Officer ought to have been examined as due to his non-examination, serious prejudice has been caused to the defence side and also creates a lacuna in the case of the prosecution.
24. Keeping in view the aforesaid observation made by the Hon’ble Supreme Court in the case of Lahu Kamlakar Patil (supra) and evidence discussed hereinabove, we are of the view that because of non-examination of the I.O. serious prejudice has been caused to the defence side and, therefore, it is vital to the prosecution.
25. Further, P.W’s. 4, 5 and 6 have not supported the case of the prosecution. They were declared hostile. Further, P.W. 7, informant herein, has also not fully supported the case of the prosecution and, in fact, she had deposed that she had stated in her cross-examination that contents of the fardbeyan were not read over to her and since the village people were on inimical terms with the accused, they gave their names as accused. It would further emerge from the record that P.W. 1 and P.W. 2, though were projected as eye-witnesses, it has come on record during their cross-examination that the accused filed a case of violence against P.W. 1 in which he had to go to jail. Further, accused Kapil Chaudhary filed a case against son and brother- in-law of P.W. 1. Similarly, P.W. 2 has also admitted that prior to this case there is a case going on between P.W. 2 and accused, which is still pending. Even otherwise, as per P.W. 1, Shankar Chaudhary died on the way, whereas as per P.W. 2, Shankar Chaudhary died during treatment in Bagaha Hospital. Thus, there are major contradictions in the depositions of the so-called two eye-witnesses. It would further reveal from the cross- examination of P.W. 2 that the said witness told the S.P. and the Inspector about the incident. The Inspector had come to the Shankar’s door and he took statements of all of them. The Inspector had first taken the statement of Shankar’s wife. He further deposed that before he left, the Inspector had taken the statement of Shankar Chaudhary. Thus, it can be said that statement of the deceased was already taken by the Inspector. However, what was the version given by the deceased has not been brought on record by the prosecution and, thereby, the prosecution has suppressed the most important aspect. Further, in the aforesaid facts of the present case, the prosecution was obliged to examine the Investigating Officer.
26. Thus, from the aforesaid deposition of the prosecution-witnesses, we are of the view that there are major contradictions, inconsistencies, discrepancies and improvement in the deposition of the prosecution-witnesses.
27. In view of the aforesaid facts and circumstances of the present case, we are of the view that the prosecution has failed to prove the case against the appellants/accused beyond reasonable doubt, despite which the Trial Court has recorded the impugned judgment of conviction and order of sentence. As such, the same are required to be quashed and set aside.
28. Accordingly, the impugned judgment of conviction dated 12.06.2015 and order of sentence dated 16.06.2015 passed by the learned Ad hoc 1st Additional Sessions Judge, Bagaha in Sessions Trial No. 390 of 2004, arising out of Laukaria P.S. Case No. 24 of 2003 are set aside.
28.1. Cr. Appeal D.B. No. 671 of 2015 stands allowed qua appellant Nos. 2, 3, 5, 6, 7 and 8 and stands abated qua appellant Nos. 1 and 4.
28.2. Since the appellant Nos. 2, 3, 5, 6, 7 and 8, namely Paras Chaudhary, Bishwnath Chaudhary, Sadhu Chaudhary, Suresh Chaudharyt, Sakaldeo Chaudhary and Kapil Chaudhary @ Kapildeo Chaudhary respectively, are on bail, they are discharged from the liabilities of their respective bail- bonds.
28.3. Cr. Appeal (D.B.) No. 868 of 2015 stands abated.
