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Bharat Sao vs The State Of Bihar on 6 April, 2018

0IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (DB) No.974 of 2012
Arising Out of PS.Case No. -106 Year- 2010 Thana -Ariari District- Sheikhpura

Bharat Sao, S/o Kameshwar Sao, Resident of Village- Bhojdih, P.S- Ariari,
District- Shaikhpura.

…. …. Appellant
Versus
The State of Bihar
…. …. Respondent

Appearance:

For the Appellant : Mr. Syed Rizwannul Haque, Advocate.

Mrs. Proniti Singh, Amicus Curiae.

For the Respondent : Mr. A. K. Sinha, APP.

CORAM: HONOURABLE DR. JUSTICE RAVI RANJAN
And
HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL

C.A.V. JUDGMENT

(Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL)
Date: 06-04-2018

Heard learned counsel for the appellant, Mrs. Proniti

Singh, learned Amicus Curiae and learned APP for the State on this

criminal appeal.

2. This criminal appeal has been preferred against the

Judgment and Order of conviction dated 25.06.2012 and order of

sentence dated 26.06.2012 passed by Adhoc Additional District and
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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Sessions Judge-II, Sheikhpura in Sessions Trial No. 722 of 2011

arising out of Ariari P.S. Case No. 106 of 2010, whereby the learned

trial court convicted the appellant for the offence punishable under

Section 302 of the Indian Penal Code and sentenced him to undergo

Rigorous Imprisonment (R.I.) for life and slapped him with fine of Rs.

5000/- and in default of payment of fine, to further undergo Rigorous

Imprisonment for one year in addition to the substantive sentence of

imprisonment .

3. Factual matrix of the case is that Ariari P.S. Case

No. 106 of 2010 was instituted under Section 302/34 of the Indian

Penal Code against Bharat Sao and Kameshwar Sao on the basis of

the fardbeyan of Mita Devi, wife of Indradeo Sao recorded by S.I.

Ashok Kumar Yadav S.H.O. P.S. Ariari on 09.07.2010 at 07:30 AM

at village Bhojdih with the allegation in succinct that the informant

had performed marriage of her daughter Jai Pati Devi with Bharat

Sao of village Bhojdih about ten years back. She was blessed with

two daughters and one son out of the aforesaid wedlock. Her son-in-

law was unemployed poor person. He used to vend tikuli and sindur

as hawker and hardly could meet the need of his family. Her daughter

persistently insisted him to earn more money by doing some other

work whereupon he used to sulk and thrash her. On making

complaint to her by her daughter about the same, she used to pay
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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visit to marital house of her daughter and persuade her daughter and

son-in-law, but there was no change in the nature of her son-in-law

and he continued to thrash her off and on. Further allegation is that

on 09.07.2010 in the morning, she got information about murder of

her daughter. Responding the same, she rushed to the marital house

of her daughter along with her family members and found the dead

body of her daughter in the courtyard of her house. Her face was

smeared with the blood. On making enquiry, she learnt that her son-

in-law Bharat Sao and his father Kameshwar Sao have eliminated her

daughter by assaulting her by means of brick in the night. Both were

found absconding from the house.

4. Aforesaid case was investigated by the police and on

conclusion of the investigation, I.O. submitted chargesheet under

Sections 498A and 302 of the Indian Penal Code against the

aforesaid accused Bharat Sao showing the accused Kameshwar Sao

as not sent up.

5. On receiving the chargesheet and the case diary and

perusing the same, the learned Magistrate took cognizance of the

offence against the accused and committed the case to the court of

sessions and on transfer finally the case came in the seisin of Adhoc

Additional District and Sessions Judge-II, Sheikhpura for trial.

6. Charge against the accused was framed under
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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Sections 498A and 302 of the Indian Penal Code. Charges weres read

over and explained to him to which he pleaded not guilty and

claimed to be tried.

7. To substantiate its case, in ocular evidence, the

prosecution has examined altogether nine prosecution witnesses

namely, Virendra Prasad as PW-1, Dhirendra Kumar as PW-2, Anil

Kumar as PW-3, informant Meeta Devi as PW-4, Radha Kumari as

PW-5, Maksudan Sao as PW-6, Ashok Kumar Yadav as PW-7, Dr.

Sudhir Kumar who conducted the autopsy of the cadaver of the

deceased as PW-8 and Dr. Md. Faizuddin, one of the member of the

Medical Board conducting the autopsy of the cadaver of the deceased

as PW-9. The prosecution has also filed and proved some documents

in the case by way of documentary evidence.

8. Statement of the accused was recorded under Section

313 of the Code of Criminal procedure. The case of the defence is

complete denial of the occurrence claiming complete ignorance about

the manner of death of the deceased. The accused has neither

adduced any ocular nor documentary evidence in buttress of his case.

9. After hearing the parties and perusing the record, the

learned trial court passed the aforesaid Judgment and Order of

conviction and sentence as detailed in the earlier paragraph.

10. Being aggrieved and dissatisfied with the aforesaid
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Judgment and Order of conviction and sentence, the convict has

preferred the present Criminal Appeal.

11. The point for consideration in this case is, as to

whether the prosecution has been able to bring home the charge

levelled against the appellant beyond all reasonable doubts or not.

12. It is submitted by learned counsel for the appellant

and learned Amicus Curiae that there is no eye witness of the

occurrence barring PW-5 Radha Kumari who happens to be daughter

of the deceased, but the said witness was admittedly aged about three

years at the time of occurrence and she happens to be child witness.

She does not appear to be competent witness as on quizzing by the

Court to test her competency to depose in the case, she had replied

that she had come to the Jail and vented her ignorance about reason

for her visit in response to the question put by the Court about reason

of visiting the Court. She was not subjected to more questions to test

her competency to give evidence in the court barring about number

of brothers and sisters she is having and as to whether speaking truth

or lie is good which was responded by her correctly. The aforesaid

testimony of the said child witness also does not stand corroborated

by any other eye witness of the case. Hence, the testimony of the

aforesaid uncorroborated incompetent child witness is not worth

credence and reliable. It is further submitted that the said witness in
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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her cross-examination has also candidly stated that at the time of

occurrence, she was sleeping and when she woke up she found her

mother died and father absconding. Thus, she does not happen to be

eye witness of the occurrence. It is also submitted that as per the

fardbeyan, the informant has learnt the occurrence of committing

murder of her daughter by her son-in-law (appellant) and his father

by means of brick, but she has not disclosed the name and identity

etc. of the source of information. Though in her statement, the

informant has stated that she had got knowledge of the aforesaid

occurrence from her grand-daughter (PW-5) at the marital house of

her daughter, but in the fardbeyan, she had not divulged the factum

of learning of the occurrence through her grand-daughter though the

fardbeyan was given subsequent to meeting with her grand-daughter

at the place of occurrence which creates serious doubt about the

prosecution case and also creates doubt about credibility of PW-5 as

had she learnt about the complicity of the appellant in the occurrence

through her grand-daughter, she would have stated so in her

fardbeyan, but not done so which also indicates that PW-5 actually

had not witnessed the occurrence rather is a tutored witness. It is

further submitted that as per the prosecution case, the appellant used

to thrash her daughter as he used to earn paltry amount by vending

tikuli and sindur as hawker and did not make effort to earn more
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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money by doing some other work despite persistent insistence of her

daughter, but none of the witnesses examined by the prosecution has

corroborated the aforesaid case of the prosecution. Moreover, in quite

contradiction to the aforesaid case of the prosecution taken in the

fardbeyan, the informant has stated the cause of death as her failure

to cough up the demand of Rs. 10,000/- of the appellant. The said

case of the prosecution also does not stand corroborated by any other

witness of the case. It is further submitted that as per the prosecution

case, the appellant assaulted the deceased by means of brick, but in

quite contradiction to the aforesaid prosecution case, PW-5 has stated

that the appellant assaulted the deceased by means of brick, lodha

and khanti and the informant has stated in her examination-in-chief

about assaulting the deceased by the appellant by means of lodha

(stone meant for grinding spices). Moreover, the aforesaid case of the

prosecution also does not stand corroborated by the medical evidence

as the doctor has opined the anti-mortem injury inflicted to the

deceased caused by sharp cutting weapon. Thus, the prosecution has

utterly and miserably failed to substantiate the prosecution case and

bring home the charges levelled against the appellant beyond all

reasonable doubts by adducing reliable, trustworthy and worth

credence ocular and documentary evidence. Hence, the appellant is

entitled to be acquitted.

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13. On the other hand, learned APP advocating the

correctness and validity of the impugned Judgment and Order of

conviction and sentence submitted that PW-5 who happens to be

daughter of the deceased, had witnessed the occurrence and she has

fully supported the prosecution case. Other witnesses and medical

evidence have also corroborated the prosecution case and the learned

trial court correctly appreciating the facts and evidence available on

record has rightly passed the aforesaid Judgment and Order of

conviction and sentence which is liable to be upheld and this appeal

has no substance in it and is liable to be dismissed.

14. To substantiate its case, prosecution has examined

six material witnesses of the case i.e. PW-1, PW-2, PW-3, PW-4,

PW-5 and PW-6. Out of the aforesaid witnesses, PW-1 and PW-3

turned hostile while PW-2 and PW-6 happen to be hearsay witnesses

of the case as PW-2 Dhirendra Kumar has vented his ignorance about

the assailant of the wife of Bharat Sao in his examination-in-chief

itself. In Para-3 of his cross-examination, he has stated that he got the

information of death on the following morning. He neither witnessed

the occurrence nor anyone divulged him about the same. He has even

denied about listening of any feud between the couple earlier. PW-6

Maksudan Sao who happens to be uncle of the deceased has stated in

his examination-in-chief that on receiving the phone call, they
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arrived at the marital house of the deceased and found blood

drenched dead body of Jai Pati Devi there. The locals divulged him

that Bharat Sao had eliminated her. He did not learn about cause of

her murder. He also did not grill her children about her assailant. He

did not disclose the name and identity of the source of information of

the occurrence and none has come forward in corroboration of the

divulgence of the occurrence to him. Thus, the aforesaid

uncorroborated evidence of the said hearsay witness is not admissible

in evidence. In Para-6 of his cross-examination, he has even denied

the demand of any money by the appellant Bharat Sao from his niece

before him. He has stated that his sister-in-law (informant) had

divulged him about the demand of money by the appellant Bharat

Sao, but the informant has not corroborated the factum of divulgence

of the aforesaid case by her to him. Hence, the aforesaid statement of

the said hearsay witness also does not appear to be admissible in

evidence.

15. Though informant Meeta Devi (PW-4) has stated in

her examination-in-chief in consonance to the prosecution case that

the appellant Bharat Sao had eliminated her daughter around two

years back in village Bhojdih. On receiving phone call, she rushed to

village Bhojdih and found the blood drenched dead body of her

daughter sustaining injury on her head there. She learnt there that
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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Bharat Sao had eliminated her. But she has not disclosed the name

and identity of the source of information and none has come forward

to corroborate the factum of divulgence of story of murder of the

deceased by the appellant to her. Moreover in quite contradiction to

the prosecution case as taken by her in her fardbeyan that when she

arrived at the place of occurrence, she learnt about committing

murder of her daughter by the appellant and his father Kameshwar

Sao, she has stated in her examination-in-chief that she learnt there

about committing murder of her daughter by the appellant Bharat Sao

only. In her fardbeyan, she has not taken the name and identity of the

source of information, but in quite contradiction to the aforesaid

aspect of the case, she has stated in Para-2 of her examination-in-

chief that her grand-daughter divulged her that her father committed

murder of her mother by assaulting her by means of lodha (stone

meant for grinding spices). In Para-10 of her cross-examination, she

has also stated that barring her grand-daughter, none has divulged her

about committing murder by Bharat Sao. The grand-daughter of the

informant Radha Kumari examined in this case as PW-5 has not

corroborated the factum of divulgence of committing murder of the

deceased by her father to the informant. Hence, aforesaid statement

of the informant for want of corroboration is not admissible in

evidence. As per the prosecution case, as adumbrated in the
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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fardbeyan, the appellant used to thrash her daughter as he used to

earn paltry amount by vending tikuli and sindur as hawker and did

not make effort to earn more money by doing some other work

despite persistent insistence of her daughter. As per the aforesaid

prosecution case, appellant committed murder of the deceased over

her persistent insistence for earning more money by doing some

other work instead of vending tikuli and sindur as hawker thereby

earning paltry amount. But in quite contradiction to the aforesaid

prosecution case, the informant has stated in Para-4 of her

examination-in-chief that Bharat Sao used to demand Rs. 10,000/-

preceding to the occurrence and committed murder of her daughter

for not coughing up the aforesaid demand. More so, though in her

examination-in-chief she has stated about demanding of Rs. 10,000/-

by Bharat Sao preceding to the occurrence, but in Para-9 of her cross-

examination, she has stated that Bharat Sao never demanded money

from her and he had also not demanded any money from her

daughter before her. Thus, from perusal of the testimony of the

informant, it appears that her aforesaid testimony is in quite

contradiction to the prosecution case as alleged in the fardbeyan and

also intra se regarding demand of money by Bharat Sao (appellant)

preceding to the murder of her daughter, cause of murder of her

daughter, source of information of the murder of the deceased by the
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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appellant, assailants of the deceased and non-corroboration of story

of the murder of the deceased by the appellant as stated by the

informant by her grand-daughter. Hence, aforesaid testimony of the

informant does not appear to be reliable and worth credence.

16. The only eye witness of the occurrence is said to be

the daughter of the deceased (grand-daughter of the informant),

namely, Radha Kumari (PW-5). From perusal of the testimony of the

said witness, it appears that she had divulged her age as three years

on the date of giving deposition though the Court has assessed her

age as six years. But the informant PW-4 has stated in Para-7 of her

cross-examination that her grand-daughter (PW-5) is aged about five

years. Said deposition of the informant was recorded on 08.05.2012

while the date of occurrence is 09.07.2010, hence PW-5 must be

three years old at the time of occurrence. Learned Trial Court has

tested the competency of the said witness before recording her

testimony by putting some questions to her and in reply to the

question as to for what purpose she has come to the Court, she had

replied that she had arrived at jail and she has failed to disclose

reason for her visiting there. Though she has also replied to the

questions about number of brothers and sisters she is having and as to

whether speaking truth or lie is a good, but she was not subjected to

more questions to test her competency to depose before the Court. As
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she had no knowledge of the place of visit and reason for visiting

there, but instead of doing so, learned Trial Court has certified her to

be competent witness. In view of the aforesaid aspect of the case and

considering such a tender age of the witness, in our opinion, she does

not happen to be competent child witness. From perusal of the

record, it appears that none of the eye witness has also come forward

to corroborate aforesaid testimony of PW-5.Thus testimony of such

uncorroborated and incompetent child witness is not worth credence

and reliable.

17. Moreover, as per fardbeyan, the informant had

learnt the occurrence of murder of her daughter by her son-in-law

(appellant) and his father by means of brick, but she has not

disclosed the name and identity of the source of such information

while in her examination-in-chief, she has stated that she had got

knowledge of the aforesaid occurrence from her grand-daughter

(PW-5) at the marital house of her daughter, but in the fardbeyan, she

had not divulged the factum of learning of the occurrence through her

grand-daughter though the fardbeyan was given subsequent to

meeting with her grand-daughter at the place of occurrence which

creates serious doubt about the prosecution case and also about the

credibility of the informant (PW-4) as once she learnt about the

complicity of the appellant in the occurrence through PW-5 then
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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why she has not stated so in her fardbeyan? Said aspect of the case

also indicates that PW-5 actually had not witnessed the occurrence

rather is a tutored witness. Though PW-5 has stated in her

examination-in-chief that her father Bharat Sao (appellant)

committed murder of her mother by means of brick, lodha and

khanti, she had witnessed the occurrence, she had also protested it

preceding to the occurrence and started weeping whereupon her

father extended threatening of dire consequence to her and after

assaulting her mother, he absconded. But in para-6 of her cross-

examination, she has stated that she was sleeping at the time of

occurrence. When she woke up, she found her mother died and father

absconding. When her father assaulted her mother, she and her

brother and sister were sleeping and after her awakening, people

arrived there. The aforesaid statement of PW-5 candidly indicates

that she had not witnessed the occurrence rather she was sleeping at

the time of occurrence along with her siblings and when she woke up

she found her mother dead. In view of the aforesaid contradiction

between her statement given in her examination-in-chief and that

given in her cross-examination about witnessing of the occurrence by

her, aforesaid child witness also does not appear to be worth

credence and reliable. Thus, in our opinion, it would not be safe to

hold conviction of the appellant relying upon the sole testimony of
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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the aforesaid incompetent child witness of the case.

18. As per the prosecution case as taken by the

informant in her fardbeyan, the appellant had assaulted the deceased

by means of brick while as per the statement of the informant given

by her in her examination-in-chief, she gathered knowledge from her

grand-daughter (PW-5) about assaulting the deceased by the

appellant by means of lodha which means that the appellant had

assaulted the deceased by means of hard and blunt substance. I.O.

(PW-7) has stated in Para-4 of his examination-in-chief that he found

blood stained brick bat at the place of occurrence but from perusal of

the post mortem report and testimony of Dr. Sudhir Kumar (PW-8),

it appears that doctor has opined the cause of death due to anti-

mortem injury inflicted to the deceased by sharp cutting weapon.

Thus, the aforesaid ocular evidence of the prosecution also does not

stand corroborated by the medical evidence.

19. In the facts and circumstances of the case, I find

and hold that the prosecution has utterly and miserably failed to

substantiate the prosecution case beyond all reasonable doubts by

adducing consistent, trustworthy and reliable ocular and documentary

evidence. Hence, the impugned judgment and order of conviction

and sentence passed by the learned trial court is set aside and the

appellant is acquitted from the charges levelled against him. As the
Patna High Court CR. APP (DB) No.974 of 2012 dt.06-04-2018

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appellant is in custody, he is directed to be released forthwith, if not

wanted in any other case. Accordingly, this criminal appeal is

allowed.

20. Let a copy of the first and last page of this

judgment be handed over to the learned Amicus Curiae, Ms. Proniti

Singh, and learned Amicus Curiae be paid prescribed fee by the

Patna High Court Legal Services Committee.

(Prakash Chandra Jaiswal, J)

Dr. Ravi Ranjan: I agree.

(Dr. Ravi Ranjan, J)
Mishra/-

AFR/NAFR AFR
CAV DATE 13.03.2018
Uploading Date 06.04.2018
Transmission 06.04.2018
Date

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