CRIMINAL APPEAL No.365 OF 1988 (DB) Against the judgment of conviction and order of sentence dated 31st May, 1988 passed in Sessions Trial No. 43 of 1982 /30 of 1983 by Smt. Rajendra Kumari, Ist Additional Sessions Judge, Muzaffarpur. ********* 1. SHAMBHU SINGH SON OF INDRADEO SINGH 2. BRAHMDEO SINGH SON OF JANAKDHARI SINGH BOTH RESIDENT OF VILLAGE- PARSAUNI, P.S.- BARURAJ, DISTRICT- MUZAFFARPUR …………………………………………………………..APPELLANTS Versus THE STATE OF BIHAR ……………………….………………………………..RESPONDENT **************** For the Appellants :- Mr. Chittaranjan Sinha, Sr. Advocate Mr. Prabhat Kumar, Advocate Mr. P. P.Singh, Advocate Mr. A. Kundu, Advocate Mr. Sanjay Kumar Singh, Advocate Mr. K. N. Jha, Advocate For the State :- Mis Shashi Bala Verma, APP ******************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S. K. Sharma & Dinesh Kumar Singh JJ. Above named two appellants have challenged the judgment of conviction and order of sentence dated 31st May, 1988 passed in Sessions Trial No. 43 of 1982 / 30 of 1983 by the learned Ist Additional Sessions Judge, Muzaffarpur whereby and whereunder the appellants have been convicted under Sections 302/34 of the Indian Penal Code and Section 147 of the Indian Penal Code and they have been sentenced to undergo imprisonment for life under Sections 302/34 of the Indian Penal Code but no separate sentence has been awarded 2 to them under Section 147 Indian Penal Code. 2. The prosecution case started rolling from the written report dated 21.7.1980 submitted by Doman Thakur (PW 11) to the Officer In Charge of Baruraj Police Station to the effect that the informant’s son Dhananjay Thakur went to see the irrigation water in the paddy field at 5 AM to Distolia. In the mean time some people caught hold of him and subsequently killed him. Reason for the occurrence has been canvassed by the informant that in the Lok Sabha election the deceased used to issue slips whereas his elder son Ram Ayodhya used to be the polling agent, as a result of which people were not happy with the sons of the informant and due to which they were on inimical terms. It is also claimed that during the Lok Sabha elections the case was also instituted and due to the election enmity the son of the informant has been killed. 3. On the basis of aforesaid written report Baruraj P.S. Case No. 15 of 1980 was registered on 21.7.1980 at 3 PM. After investigation the police submitted charge sheet and consequently, cognizance was taken and the case was committed to the Court of Sessions where the charges were framed and explained to the 11 accused persons to which they pleaded not guilty and claimed to be tried, out of which 9 have been acquitted and two were convicted, who are the appellants here. 3 4. In order to substantiate its case, the prosecution has examined altogether 17 witnesses, out of which PW 1 Ram Kishore Singh is the Investigating Officer, PW 2 Biraju Thakur, PW 3 Sakur Mian, PW 4 Ram Chandra Thakur, PW 5 Bishun Deo Thakur the uncle of the informant, PW 9 Nago Mahto, PW 12 Md. Salim, PW 13 Triveni Thakur, PW 14 Md. Ibrahim and PW 15 Bindeshwari Singh have not supported the prosecution case and have been declared hostile. 5. PW 6 is Dr. Binod Kumar Mahto, who conducted post mortem on the dead body of the deceased Dhananjay Thakur. PW 7 Shyam Nandan Singh is a formal witness, who has proved the inquest report and seizure of blood stained soil. PW 8 Doman Sah and PW 10 Ram Kailash Singh have supported the defence version that the victim died while receiving the injuries when he was caught committing theft in the house of Banslal Singh. 6. PW 11 Doman Thakur is the informant and is the only witness who supported the prosecution case. 7. PW 16 Bishwanath Prasad is also a formal witness, who has proved the writing of the fard beyan (Ext. 8). 8. PW 17 Syed Mahboob Hasan is the Judicial Magistrate, who recorded the statements under Section 164 of the Code of Criminal Procedure of PWs 2, 3, 4, 5 and one Nagina Ram (not examined during trial). 9. The defence has also examined two witnesses, 4 namely, Punya Deo Singh and Satya Narayan Singh. Both have come to depose the defence version that the victim received injuries at the hands of more than 100 people when he was caught committing theft in the house of Bans Lal Singh. 10. Learned trial court on the basis of evidence of the informant (PW 11) convicted two accused persons, who are appellants before this Court and acquitted 9 others. 11. Now this Court has to see whether the conviction of the two appellants, based on the evidence of the informant PW 11, is justified or the evidence of PW 11 is credit worthy to the extent that the impugned judgment needs no interference. 12. Admittedly, PW 11 in his written report has not named any one and the written report was given to the police when the police on the information reached the place of occurrence. Admittedly, the FIR was registered after ten hours of the occurrence i.e., at 3 PM on 21.7.1980 whereas the occurrence took place 5 O’clock in the morning- the same day. PW 11, in paragraph 13, has stated that he did not name any accused persons and also he has not named any when his statement was recorded by the Dy.S.P. and Superintendent of Police. The informant for the first time named 11 accused persons in his statement recorded under section 164 Cr.P.C. on 21.8.1980 i.e. after more than a month of the occurrence. The other accused persons like PWs 2, 3, 4, 5 and one Naina 5 Rai (not examined during trial) got their statements under Section 164 Cr.P.C., recorded (Ext. 9/1 to 9/5) on 4.9.1980 and they also named 11 accused persons. All the witnesses whose statement was recorded under Section 164 Cr.P.C. have been declared hostile including PW 5 who is the uncle of the informant. 13. Moreover, it is a settled law that the statement under Section 164 Cr.P.C. is not a substantive piece of evidence and it can be used only for corroboration and contradiction purposes. When the informant admits in his evidence that he neither named any one in the written report nor in his statement given before the supervising authority then his naming few people after more than a month in the statement under section 164 Cr.P.C. has no relevance. Particularly in the background of the fact that the informant doubts the contents of statement given under Section 164 Cr.P.C., regarding which he has deposed in paragraph 6 of his evidence that statement recorded under Section 164 Cr.P.C. was not read over to him. Not naming the accused persons for more than a month not only impeaches the credibility of the informant (PW 11) but also clouds the whole prosecution case in view of the fact that the informant and both the appellants are residents of the same village. In paragraph 10 of his evidence, PW 11 has stated that the informant was recognizing the accused persons by face as they are co-villagers. 6 14. In such a situation not naming the accused persons in the written report and admission of the informant in paragraph 11 that he has not named any person in the written report and also in his subsequent statement as he has admitted in paragraph 13 of his evidence, suggest that the implication of the accused persons after more than a month in the statement under Section 164 Cr.P.C. is a deliberate improvement and which completely impeaches the credibility of the informant. 15. The inconsistencies in the evidence of the informant creates doubt about his ability to unfold the truth. In paragraph 5 of his evidence, PW 11 talks about recording of the fard beyan and it is not a written report. Whereas in paragraph 11 the informant accepts that he handed over the written report to the police. From the evidence of PW 11, it appears that he could not see the occurrence as in paragraph 12 he has deposed that he came to know about the assault on his son through his neighbour PW 8, who was conveyed about the assault by PW 9 as PW 9 was coming after getting treated his son who had suffered Snake bite. PW 8 in his evidence has supported the defence case by saying that PW 9 conveyed to him that a theft has been committed in the house of Bans Lal Singh and when he inquired from the informant then he conveyed to the informant that his son Dhananjay Thakur was killed while committing theft in the house of Bans Lal Singh 7 and this fact has been conveyed to him by PW 9. Hence, PW 8 through whom the informant came to know about the assault has supported the defence version and he has not been declared hostile. Hence, this prosecution witness has proved the defence version which gets credence from the evidence of the informant in paragraph 12 that he came to know about the assault from PW 8. 16. Inconsistencies in the evidence of PW 11 is apparent from his evidence given in paragraph 14 where it has been stated that the informant and his wife went to see Dhananjay (deceased) but on way Dwarika Singh and Kedar Singh conveyed to him that his son will not be assaulted and hence the informant and his wife returned to their house and on next day Misrilal Sah (not examined) and Nand Kishore (not examined subsequently conveyed that son of the informant died. This part of evidence of the informant creates doubt about his own knowledge of the occurrence as no parents will return to their house without seeing their son and that too when they were informed by PW 8 that his son was assaulted. 17. It is well settled law that the conviction can be arrived at even on the sole testimony of one witness provided its credit worthy enough to conclusively prove the charges. But the evidence of PW 11 does not instill confidence of that level. 18. PW 10 Ram Kailash Singh has also supported the defence version by deposing to the effect that the victim 8 Dhananjay Thakur died in bleeding condition in the cattle shed of Badri Singh which was seen by this witness at 6 AM in the morning. This witness came to know that while committing theft in the house of Bans Lal Singh, 100 people even from the outside of the village had assaulted the victim. This witness has also not been declared hostile and it lends credit to the defence case that the victim was assaulted at the cattle shed of Badri Singh. Presently Banslal Singh has not been made accused and in whose house the deceased, Dhananjay Thakur, is found to have died. 19. PW 1 is the Investigating Officer. He has also supported the defence version to the effect that the deceased died while committing theft in the house of Banslal Singh. PW 1, in paragraph 1 of his evidence, has stated that he received information that villagers have injured one thief in village Parsauni Kapoor and then he sent ASI Shyam Sundar Singh who then reached at the spot and prepared the inquest report (Ext. 1) which also suggests that the inquest was prepared in front area (Sahan) of the door of Banslal Singh in village Parsauni Kapoor. This fact further gets corroborated by the evidence of PW 1, in paragraph 14, that the counter version was also recorded at the instance of Shambhu Singh with regard to Baruraj P.S. Case No. 14 of 1980 registered under Sections 457, 380 and 511 of the Indian Penal Code in which the victim was an accused but subsequently, since the victim 9 died, the final form was submitted. Further PW 1, in paragraph 8 of his evidence, has specifically stated that the dead body was recovered in front area (Sahan) of the house of Banslal Singh and there is no sign of dragging or any incriminating sign was available at the place of occurrence. Hence, the evidence of PW 1 also does not support the prosecution case. Though PW 6 Binod Kumar Mahto, who conducted post mortem on the dead body of the victim Dhananjay Thakur, found seven injuries out of which 3 are incised injuries whereas two injuries are lacerated and one is bruises and another is abrasion. But, since the prosecution has not been able to prove the manner of assault, hence, the evidence of doctor is of no help in deciding the issue. 20. So far as the place of occurrence is concerned, as per the informant, the occurrence took place when the victim was going to his land at Distolia area but the evidence of Investigating Officer (PW 1), inquest report, evidence of PW 8 and PW 10, who supported the defence version without being declared hostile, suggest that the place of occurrence is the front area of the house of Bans Lal Singh, who has not been made accused. Hence, on this score the prosecution case as reflected through the written report of the informant, gets clouded. 21. So far as the motive is concerned, the written report of the informant suggests that there was some election 10 dispute which was the reason behind committing the offence but during the evidence no material has been brought on record to prove the motive as alleged in the written report even the informant has not tried to suggest anything with regard to the motive alleged in the written report. Hence, on this score also the prosecution case fails. 22. The prosecution has not examined the material witnesses which creates doubt about the prosecution case. In the written report the informant talks about the election dispute with his elder son Ram Ayodhya who used to be a polling agent but he has not been examined. PW 11, in paragraph 14, has stated that when he was going to see his injured son (deceased) he met Dwarika and Nand Kishore who conveyed that his son will not be assaulted. The aforesaid two persons have deliberately been withheld. In the same paragraph the informant suggests that it was Nand Kishore who conveyed about the death of informant’s son but Nand Kishore has also not been examined. The informant in paragraph 15 of his evidence has stated that his nephew Pradhan Thakur was assaulted during the election but the said Pradhan Thakur has not come to depose to support the motive alleged by the informant. 23. The most important person is Banslal Singh in whose house, as per the Investigating Officer, PWs 8 and 10, theft was committed by the victim when he was being 11 assaulted by the villagers and outsiders and the dead body was found in front of the house of Banslal Singh but he has not been made accused. 24. From the discussions made above, we come to the conclusion that the prosecution has miserably failed to prove the manner of occurrence, place of occurrence and any charge against the present appellants. Hence, the judgment of conviction and order of sentence against the appellants as stated above is set aside and this appeal is allowed. The appellants are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.) Patna High Court, Patna Dated 29th September, 2010 Avin/N.A.F.R.