As Trial court was under impression that panchanama is a substantive piece of evidence but Panchnama is not substantive piece of evidence and the same can be used in corroborative piece of evidence – High Court of Patna
TITLE-Tunna Choudhary & others Vs The state of Bihar with Sukari Devi & Others Vs The State of Bihar
DECIDED ON- 08/12/2023
+CR.APP(DB)No.108/2018
CORAM-HONORABLE JUSTICE SUNIL DUTTA MISHRA
INTRODUCTION
As both the appeals have been taken together ,as all the six accused/ appellants were tried by the learned Additional Sessions Judge VIth,Buxar for the offences punishable under section 302 and 201/34 of IPC were Tunna choudhary and Badan Choudhary under section 302 of IPC and all the six accused persons have been convicted under sec 201 of IPC where Appellant filed this appeal to set aside the order passed in the Trial court.
FACTS
As per the facts of the case from the Prosecution side thar on 26/03/2013 informant i.e Petitioner witness no.1 son age of 3 who went to play outside the house did not return till evening and he with the villagers went for the search but did not find him.As on 29/03/2013 petitioner witness no.1 along with villager went to Tunnajee Choudhary as they were in suspicion as due to old enmity and after questioning and assaulting he disclose that after killing the child dead body was concealed in bamboo clump of Hiralal choudhary.After reaching they found the dead body.It is alleged that with common intention Tunna choudhury along with his father Baban choudhary and his wife Sunita Devi murdered his son and concealed his dead body.The formal FIR was registered for the offences under section 302,201 and 34 Of IPC and after investigation charges sheet against two accused namely Tunna Choudhary and again through learned chief judicial Magistrate took cognizance against three accused persons including Tunna Choudhary,Baban Choudhary and Sunita Devi there after case was committed and charge was framed for the section 302/34 and 201 of IPC . Prosecution filed a petition under 319 of CrPc to summon three Appellant namely Rajendra Chaudhary,Ashok Chaudhary and Sukari Devi as accused and the petition was allowed.After Completing of oral and documentary evidence the statements of accused under 313 of the CrPC was recorded.At the conclusion of trial the trail court convicted the appellants and sentenced them as aforesaid.Feeling Aggrieved by the said Judgment and order these Appeals.
THE COURT ANALYSIS AND DECISION
As per the Hon’ble court after carefully perused the records and proceeding and to examine the correctness the court assess the all the petitioner witnesses. The Hon’ble court observed that there was no eye witnesses to the incident and the case is based on circumstantial evidence.For proving a crime it is not necessary that it must be seen to have been committed or be proved by a direct ocular evidence and the offence can be proved by circumstantial evidence also and it is settled principle of law that accused can be punished if he found guilty even in cases if circumstantial evidence and the Burden of proof lies on the Prosecution to prove its case beyond reasonable doubt on the basis of legally admissible evidence.As the prosecution has failed to prove the motive if appellant although Petitioner witness no.1 in his cross examination admitted that they ahve quarrel since 2008 and his wife was kidnapped by the accused wife but there was no FIR lodged and the inimical relation with accused does not show strong motive for killing the child but it may be one reason to kill the child.But there is no material to show that all the accused had common intention and their participation in it is not made out of credible evidence without a clear finding of common intention and participation there can be no offence under section 34 IPC. The witness should be the author of the document sought to be proved and this mode of proof by way of oral evidence is stipulated under section 59 of the Evidence act.The learned trial court was under the impression that panchanama is substantive piece of evidence but the panchanama is not substantive piece of evidence and the same can be used as corroborative pieces of evidence.Considering the entire materials from the records and proceeding it is not possible to conclude that the appellant/convicted accused before this court had committed the subject crime and none else and in logical inference the material on record does not probablize the contingency that except the accused none else.As at present the Prosecution has failed to establish their guilt by adducing clear,cogent, trustworthy and clinching evidence.In the result all these appeals deserve to be allowed and are allowed with following order and The impugned judgement and ordered passed by the learned Additional sessions judge VI is accordingly setaside.
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