1 GOVT. APPEAL (DB) No.63 OF 1988 - - - - - Against the judgment of acquittal dated 26th day of July, 1988, passed by the 7th Additional Sessions Judge, Purnea, in Sessions Trial No. 265 of 1986. - - - - State of Bihar … … … Appellant Versus 1. Arun Paswan 2. Bijoy Das 3. Ram Chandra Thakur … … Respondents For the State: Sushri Shashi Bala Verma, A.P.P. For the respondents: S/Shri Hare Krishna Kumar, Om Prakash Pandey, Siya Ram Shahi and Amiya Kumar, Advocates P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE AKHILESH CHANDRA - - - - Dharnidhar Jha & Akhilesh Chandra, JJ.- This Government Appeal has been preferred to challenge the order of acquittal passed by the learned 7th Additional Sessions Judge, Purnea, on 26th day of July, 1988 in Sessions Trial No.265 of 1986. The respondents were acquitted of the charge under Section 302/34 of the Penal Code. 2. The Prosecution case is that the informant (P.W.3) Naimuddin was returning by his bicycle from Banmankhi to his house. He had on the carrier of his bicycle seated the deceased Rajo Das. When they came at a particular place, described by him as Khutahari drainage bridge, accused Arun Paswan, Ram Chandra Thakur and Bijoy Das were found sitting nearby and listening to a radio. Out of them, accused Arun Paswan asked the deceased Rajo Babu to stop. The informant and the deceased got down from the bicycle and the three 2 accused persons also came near them leaving the radio set. Respondent Arun Paswan is said to have requested the deceased Rajo Das to help him out in the matter of one Anandi Paswan having filed a petition against him expressing apprehension that the said Arun Paswan would loot away his standing crops. The deceased promised to look into the matter. The deceased and the informant proceeded again and when they were crossing the drainage bridge and were down the slope to descend to a lower level, respondent Ram Chandra Thakur requested Rajo Das for ensuring registration of the sale deed in respect of the land which was, probably, purchased by him upon which the deceased also assured him that he will attend to the difficulties as and when they appeared upon which Ram Chandra Thakur stated that it would not be sufficient and in a haste caught hold of the hands of the deceased, whereafter, respondent Bijoy Das fired a shot from back of the deceased. The deceased started running away raising a cry of “Bachao- Bachao’. The informant stated that he also fled from there with his bicycle. The deceased Rajo Das fell down on the southern side of the road whereafter the three accused persons went near him and fired shots to kill him. 3. The informant stated that while he was rushing away from the place of occurrence he found one Brahmdeo Das also passing by the same bridge who enquired from the informant as to why he was running 3 away but he did not respond to the query and kept running away in a hurry and reached his house and without stating anything to any one, lied down. The informant stated that when Rajo Das was running away one of his shoes as also his spectacle fell down on the road. The informant stated that he was called by the police and then only he could give his statement which is contained in Ext. 1, the fardbeyan. 4. The reason of the occurrence, as stated by the informant, was that the son of one Ram Chandra Thakur had been in jail in connection with a dacoity case. The deceased Rajo Das had got 2 bighas of land transferred in the name of the son of his Sipahi, Sheo Dayal sigh, who was named Ram Sahai Singh and sold the land for Rs. 24,000/- to one Usman Ali and the same land was being asked to be returned back by accused Ram Chandra Thakur. Ram Chandra Thakur was, as such, nursing a grudge against the deceased as he was not getting back his land and was telling that he had brought two bighas of land into his possession illegally which belonged to one Janardan Kunwar and was pressurizing Rajo Das to ensure that the said land which was illegally captured by Ram Chandra Thakur was legally transferred to him and that dispute was probably the reason for murdering the deceased Rajo Das. 5. As may appear from the evidence on record of Tarani Prasad, the Sub-Inspector of Police, P.W.9, 4 that he was informed by Yugal Pawsan Chaukidar that some criminals had murdered a man just near the Khutahari drainage bridge. That information was recorded into the station diary and P.W.9 proceeded with some police officers to verify the same. He came to the place of occurrence on 6.8.1985 and found that a huge mob had assembled there and that a dead body was lying and the man had been killed by firearms. The people assembled there identified the dead body as that of Rajo Das and P.W.9 was reported by them that the deceased was coming with Naimuddin, P.W. 3, from Banmankhi and while on his way to his village, the criminals shot him dead. P.W.9 sent for P.W. 3 Naimuddin, who came and his statement was recorded and on that basis the F.I.R. of the case was drawn up. 6. P.W.9 recorded the statements of different persons assembled there and also inspected the place of occurrence in the light of a petromax. He found some part of the projectile of the bullet lying on the ground there and he also found blood on the ground. Those were seized by preparing the seizure memo. P.W. 9 held enquest on the dead body of Rajo Das and prepared an inquest report and sent the same for post mortem examination. He handed over the charge of investigation to S.I. Upendra Prasad Paswan on 10.8.1985. 7. It appears that the investigating agency found the materials sufficient and, as such, forwarded 5 the accused persons in the present case for trial and this is how the trial was held and that ended in acquittal of the three accused persons. 8. Sushri Shashi Bala Verma, learned Additional Public Prosecutor appearing for the State has taken us through the evidence of the witnesses and we find on such consideration of the evidence that P.Ws. 1 and 4 are admittedly the raiyats of one Kusho Babu who was the full brother of the deceased Rajo Das, which is available to us from evidence of P.W.1 at page 19 of the Paper Book. It further appears from the evidence of P.Ws. 1 and 4 that their houses were situated at the land of the deceased and further that P.W.1 did not give his statement before the police in spite of knowing that the police was very much in the village to investigate the case not only on the day of occurrence but also on a day thereafter and lastly it was S.I. Upendra Prasad Paswan who could record his statement after going to him after one and half months of the occurrence. This is how the statement of P.W. 4 was also recorded. We find that there is an element of the two witnesses being set up by the said Kusho Babu or P.Ws. 6 Nageshwar Das who was very much there at the scene when the occurrence had taken place and in our considered view it is not safe to place any reliance on the evidence either of P.W.1 or P.W.4. 9. So far P.W. 2 Brahmdeo Das is concerned, we find from the very evidence of this witness that he has 6 not claimed himself to be an eye witness. He reached at the place of occurrence only after he had heard the sound of gun shots and on coming back to the scene of occurrence found the deceased lying down. Similar is the evidence of P.W. 5 who is also named as Brahmdeo Das that he was not an eye witness to the occurrence. P.W.5 in his evidence in paragraph 3 has also stated that he was the cousin of the deceased on account of the grand father of P.W. 5 and the grand father of the deceased being full brothers. His evidence indicates as does the evidence of P.W. 2 that when he came at the scene of occurrence it was very much thick in the air that it were the respondents who could be the killers of the deceased. P.W.6 is not a witness to the occurrence. He is only the witness to the seizure of the blood stained earth and projectile of the firearm. P.W. 7 was tendered whereas P.W. 8 was the Doctor who held the post mortem examination on the dead body of the deceased. 10. As regards the evidence of P.W.3, the informant, we could not accept it for many reasons, one of the most important reasons being his own conduct. He has claimed himself to be the eye witness on account of bringing the deceased on the carrier of his bicycle. He heard every word which was spoken by the accused persons or replies to them given by the deceased before the deceased was shot by one of the respondents Arun Paswan. He saw the deceased being hit by the bullet and 7 he saw the deceased running for his life crying ‘Bachao- Bachao’ and, lastly, falling down south of the road. He fled for his own life. He has admitted right from the very inception of the fardbeyan that he had met one Brahmdeo Das just when he was crossing the bridge at the same time who was also making a query as to what was the reason of his running in such a haste or rush. The informant did not respond to any query. He came to his house and it appears from his evidence in court that during that course also he was being confronted by many persons or meeting many on his way to house. He was not telling anybody as to why he was running away to secure safety at his house and how the deceased had been murdered and by whom. 11. After having reached the safety of his house, P.W. 3 did not speak a word even to his family members, least to talk of any of his neighbours or villagers. His conduct is suspicious when he says that he did not even go to the house of the deceased to inform his brothers and other relatives as to how he had been killed and by whom. P.W. 3 lied down in his bed unconcerned about the incident which had occurred before his own eyes. He remained silent for quite some hours as the occurrence took placed at about 5.30 P.M. and the fardbeyan was recorded at 8.30 P.M., i.e., 3 hours after the incident. These three hours were the periods of silence for P.W. 3. He was speaking out not out of his own, but only when he was sent for by P.W.9 8 and that too when he learnt from other persons having assembled there at the place of occurrence that P.W. 3 could be the only person to unfold the narration as to how the deceased had been butchered. If this could be the conduct of solitary eye witness, no court could be ready to act upon the evidence of such a witness 12. The other important reason which we find is that during cross examination which may appear at pages 43 and 44 of the Paper Book, P.W. 3 introduced a 3rd person as one of the companions of his and the deceased. That 3rd person was non-else than the Sipahi of the deceased( Sipahi in general parlance of the area from which the crime has been reported, could be a person to look after the agricultural affairs of a man). P.W. 3 states that he, the deceased and the Sipahi were coming back. They were coming on foot. So the story that the informant was carrying the deceased on the carrier of his bicycle becomes not acceptable, not because it is an improvement subsequently made but because this fact is elaborated by P.W.3 in his further cross examination by the defence when he answered that the band of three persons were being led by the deceased who was moving ahead of the two. This is for the first time that P.W. 3 was introducing this fact. The other reason is that if the Sipahi was really accompanying the deceased and P.W.3, there was no reason for P.W.3, not to state this very fact in his fardbeyan and further that Sipahi was not examined in 9 the court. We could have many options for drawing an inference arising out of the non-examination of the Sipahi. First option out of many is that the Sipahi could not be ready to support the prosecution case and, as such, the prosecution chose to withhold him and not to produce him so as to embarrassing it further as it was already embarrassed by the non-support coming from P.Ws. 2, 5 and many others. 13. P.W.6 Nageshwar Das has stated that he and the deceased had been made accused along with others in a case of arson which was lodged by the informant Naimuddin on an earlier occasion. This fact also appears admitted by P.W.3 in his evidence. But, he stated that there was a compromise in that case and the accused persons were, probably, let off. Could not it be a possibility out of many, that the informant could be nursing a grudge and could have settled the scores himself. 14. There are many circumstances out of whom most have been dealt with by the learned trial Judge and we find that the view which was taken by the learned trial Judge was also a possible view. The appreciation of evidence was properly made and we do not find any perversity inflicting the approach of the learned trial Judge in considering the evidence and thereby recording the findings. We are of the view that the acquittal of the three respondents was properly recorded. 10 15. As a result of the above, we find the appeal of no merit and the same is dismissed. 16. While admitting the present Government Appeal, the Court had issued bailable warrant against the respondents and we think that the respondents are on bail. They shall stand discharged from the liabilities of their respective bonds. ( Dharnidhar Jha, J.) ( Akhileshs Chandra, J.) Patna High Court The 7th April, 2010 Kanth/N.A.F.R.