RAJESHWAR CHAUHAN @ KAMDEO CHAUHAN vs STATE OF BIHAR (NOW JHARKHAND)

Heard learned senior counsel for the appellants and the learned counsel for the State.    Â

The appellants are aggrieved by the impugned Judgment of conviction and Order of sentence dated 17.09.1996, passed by the learned Judicial

Commissioner, Ranchi, in S.T. No. 449 of 1992, whereby, the appellants have been found guilty and convicted for the offence under Section 304 Part-

I of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I for life for the said offence.Â

The prosecution case was instituted on the basis of the fardbeyan of the informant Anarwa Devi, the wife of the deceased Radha Chouhan,

recorded on 3.4.1992 at Churi Siding, P.S Khelari, District Ranchi, wherein she has stated that on 5.3.1992, the accused Suresh Chouhan called her

husband in the evening at about 7:45 P.M., and it is alleged that when the her husband went out with him, both the accused persons, namely,

Rajeshwar Chouhan and Suresh Chouhan, assaulted her husband by lathi on his head and other parts of the body, causing bleeding injuries on him. It is

also stated in the fardbeyan that the occurrence was witnessed by Brijlal Chouhan, Ram Keshar Chouhan and other persons. It is stated in the

fardbeyan that thereafter on 7.3.1992, her husband was admitted in the hospital from where he was referred to R.M.C.H. Ranchi, on 18.3.1992,

where he died on 19.3.1992 in course of treatment. It is stated that the occurrence had taken place due to previous enmity with the accused persons.

The fardbeyan was given by the informant on 3.4.1992, and as to the cause for this delay, it is stated that the delay was caused due to performing the

last rites of her husband. On the basis of the fardbeyan, Khelari P.S Case No. 42 of 1992, corresponding to G.R No.1562 of 1992, was instituted for

the offence under Sections 304 of the Indian Penal Code, against both the accused persons, and investigation was taken up. After investigation, the

police submitted the charge-sheet in the case.

After commitment of the case to the Court of Session, charge was framed against both the accused persons for the offence under Section 304

Part-1, of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial,

prosecution has examined seven witnesses, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased.

The I.O. has not been examined in this case and accordingly, the fardbeyan and the formal FIR have been proved by a formal witness P.W.-7 Bhola

Das, which were marked Exhibits-2 and 3 respectively. Out of the material witnesses examined, P.W.-1 Braj Lal Chouhan and P.W.-2 Ram Keshar

Chouhan, who were said to be the eye witnesses to the occurrence, have turned hostile and have not supported the prosecution case at all.Â

The prosecution case is supported by P.W.-3 Fulkeshri Devi and the informant P.W.-5 Anarwa Devi, who are the daughter and the wife

respectively of the deceased, as eye witnesses to the occurrence, wherein they have stated that they had seen both the accused persons assaulting the

deceased by iron rod. P.W.-4 Mukhlal Choudhary has supported the case only as a hearsay witness, as informed to him by P.W.-3 Fulkeshri Devi and

P.W.-5 Anarwa Devi.

P.W.-6 Dr. Niranjan Minz, had conducted the post-mortem examination on the dead body of the deceased on 20.3.1992, and had found three ante-

mortem stitched wounds on the dead body of the deceased, on the head, caused by hard and blunt substance. The Doctor has stated that the death

was caused due to head injuries. He has identified the post-mortem report to be in his pen and signature, which was marked as Exhibit-1.   Â

Learned senior counsel for the appellant has taken a short point and submitted that there was an inordinate delay in lodging the FIR, inasmuch as,

the occurrence had taken place on 5.3.1992 and the deceased died due to the alleged injuries on 19.3.1992, still the FIR was lodged only on 3.4.1992

and no sufficient ground has been given for lodging the FIR after the inordinate delay of nearly about one month. Learned counsel submitted that the

enmity is admitted in the case, inasmuch as in the FIR itself, it is stated that the occurrence had taken place due to the enmity between the parties.

Even the two persons said to be the eye witnesses to the occurrence, have turned hostile and have not supported the prosecution case at all. Learned

counsel submitted that accordingly, in view of the admitted enmity between the parties, the false implication of the accused persons, after a delay of

near about one month, cannot be ruled out. Learned counsel accordingly, submitted that in the facts of this case, the prosecution has failed to bring

home the charge against the appellants beyond all reasonable doubts, and the appellants ought to have been acquitted of the charge.Â

Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that P.W.-3 Fulkeshri Devi and P.W.-5 Anarwa Devi,

who are the daughter and the wife of the deceased, have fully supported the prosecution case stating that they had seen these appellants assaulting

the deceased by iron rod. Their ocular evidence is also supported by the medical evidence of P.W.-6 Dr. Niranjan Minz, who had found three injuries

on the head of the deceased, caused by hard and blunt substance, which were the cause of death. Learned counsel accordingly, submitted that

prosecution has been able to bring home the charge against the accused persons beyond all reasonable doubts and there is no illegality in the impugned

Judgment of conviction and Order of sentence passed by the Trial Court below.Â

Having heard learned counsels for both the sides and upon going through the record, we find that even though the prosecution case is supported

by                P.W.-3 Fulkeshri Devi and P.W.-5 Anarwa Devi as eye witnesses to the occurrence, but the delay in

lodging the case is absolutely fatal to the prosecution. Admittedly, the occurrence had taken place on 5.3.1992, and the deceased had died on

19.3.1992, but the fardbeyan was lodged only on 3.4.1992, after nearly about one month of the alleged occurrence. The explanation that the FIR was

lodged after performing the last rites of the deceased, is not at all acceptable as the reason for lodging the FIR after such an inordinate delay. In view

of the admitted enmity in the FIR, the false implication of the accused persons after such an inordinate delay cannot be ruled out.Â

We also find from the record that even though the FIR was lodged by the informant on 3.4.1992, but the post-mortem examination on the dead

body of the deceased was conducted on 20.3.1992 itself, as is evident from the evidence of P.W.-6 Dr. Niranjan Minz, and the post-mortem report

proved by him as Exhibit-1. This Exhibit-1 shows that the post-mortem of the deceased was conducted in connection with Bariyatu P.S. F.I.R. No.

2824 dated 19.3.1992. That FIR has not been proved by the prosecution and there is nothing on the record to show the contents of that FIR. It is thus,

apparent that the present FIR is not the first FIR about the occurrence, and the first FIR has been concealed by the prosecution.Â

In view of the discussions made above, we find that the prosecution has failed to bring home the charge against the accused appellants beyond all

reasonable doubts, and it is a fit case in which the appellants ought to have been acquitted by the Trial Court below. As such, the impugned Judgment

of conviction and Order of sentence cannot be sustained in the eyes of law. 12.   For the foregoing reasons the impugned Judgment of

conviction and Order of sentence dated 17.9.1996, passed by the learned Judicial Commissioner, Ranchi, in S.T. No. 449 of 1992, convicting and

sentencing the appellants Rajeshwar Chauhan @ Kamdeo Chauhan and Suresh Chauhan, for the offence under Section 304 Part-I of the Indian Penal

Code, are hereby, set aside. Consequently, both these appellants are found not guilty and they are acquitted of the charge. Both the appellants are on

bail, and they are discharged from the liabilities of their respective bail bonds.Â

This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this

Judgment.    Â