IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.71 of 1998 Against the judgment and order of conviction and sentence dated 18.2.1998 passed by Sri P. Saran, Sessions Judge, Nalanda at Biharsharif in S.T. No. 289 of 1995. ========================================================= 1. Suresh Yadav, son of Brahmdeo Yadav, 2. Parmanand Yadav, son of Awadhesh Yadav, 3. Awadhesh Yadav, son of Barahamdeo Yadav, 4. Awadhesh Yadav, son of Ramu Das, all residents of village – Bishunpur, P.S.- Hilsa, District - Nalanda .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s with Criminal Appeal (SJ) No. 151 of 1998 ========================================================= Arjun Yadav, son of Ramautar Yadav, resident of village – Bishunpur, Police station – Hilsa, District - Nalanda .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s ========================================================= Appearance : (In both the appeals) For the Appellant/s : Sarvshri Chittaranjan Sinha, Sr. Advocate Binay Kumar & Manoj Madhav, Advocates For the Respondent/s : Shri Ajay Mishra, APP ========================================================= PRESENT THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ---------- Dharnidhar Jha, J. These appeals arise out of the judgment dated 18.2.1998 passed by the learned Sessions Judge, Nalanda in Sessions Trial No. 289 of 1995. By the impugned judgment, the appellants of Cr. Appeal (SJ) No. 71 of 1998 were convicted of the offence under sections 307/149 IPC and each of them was directed to suffer RI for five years. So far as appellant Arjun Yadav is concerned, he was convicted for the offence under sections 307 and 148 IPC and 2 sentenced to undergo RI for ten years and one year respectively. 2. The prosecution case is contained in the fardbeyan of P.W. 4 Tuna Yadav, who stated that while he was grazing his buffalo in the Bisunpur Khandha, the animal strayed into the lady finger (Bhindi) field of appellant Suresh Yadav and on that all the appellants came there. Out of five appellants, appellant Arjun Yadav, Awadhesh Yadav and Parmanand Yadav were armed with country made guns. Appellant Suresh is said to have ordered to kill the informant, hearing which, the informant ran towards his house and was followed by appellants up to his house when he entered inside it and while, so entering the pellets fired by appellant Arjun Yadav hit him, as a result of which he fell down. The appellants made good their escape. 3. It is stated that P.W. 1 Deena Gope, P.W. 2 Ramadhin Gope, P.W. 3 Sadhu Sharan Gope and others of the village had witnessed the occurrence. 4. It appears that the informant was brought to Sub Divisional Hospital, Hilsa and there he gave his fardbeyan while he was admitted for treatment of his injuries. The fardbeyan was recorded in presence of P.Ws 1 and 2, who signed the documents as attesting witnesses. P.W. 5 Md. Imamullah, the I.O. of the case, after investigating it, submitted charge sheet, which resulted into the trial of the appellants and ultimately, into the impugned judgment. 5. The submission of learned senior counsel appearing for the appellants was that the very judgment rendered by the learned trial court by its paragraph 14 indicates that the basic story of appellant Suresh Yadav exhorting the other appellants generally and appellant Arjun Yada specially, for killing the informant (P.W. 4) has been disbelieved and once that particular important link of prosecution story vanishes the whole prosecution story shrouded into mystery, 3 making it very difficult for this Court to sustain the judgment of conviction and sentence in question. It was further contended that the initial story of the prosecution that the informant was grazing his buffalo and further that the animal strayed into the field of appellant Suresh was given a complete go by and even on specific questions being put to P.W. 4, he was simply showing his ignorance or was feigning ignorance which could be indicative of the fact that the occurrence had taken place in some other manner which facts were being concealed and, as such, the prosecution witnesses were guilty of concealing the facts and they could not be believed. On these two scores, the impugned judgment has been attacked. 6. The learned Additional Public Prosecutor has pointed out to this Court that P.W. 5 while was describing the place of occurrence, pointed out that he found the pellet marks on the walls of the house. In spite of that, learned APP could not reconcile some of the statements of witnesses, specially, on the most absurd part of it that while they were concealing themselves by closing the doors of the rooms so as to securing themselves from the target of the gun shot, then how was it that the informant was braving the shots by standing in the open verandah. 7. The learned trial judge has recorded the finding as regards appellant Suresh Yadav exhorting the other accused in the following manner: “14. Some of the P.Ws. have, of course, stated that they heard accused Suresh yadav exhorting to fire, pursuant of which, Arjun Yadav shot his gun, but this appears to have been uttered in over-zeal or over exhuberance, since according to the F.I.R. such order was made by accused Suresh Yadav in Bishunpur Khanda and never in front of informant’s house, where were the witnesses. This does not appear to be 4 a contradiction worth the name, since, this does not make any deviation in the consistency of their statements about the occurrence and also the prosecution case. Such minor contradiction here and there are bound to occur particularly when the witnesses came from village-folk and are rustic and more-so, when they make such statement after a gap of years after the occurrence. The contradiction of a minor and trifle nature which do not go to the root of the case cannot be taken serious note of.” 8. However, on consideration of the same, what appears accepted by the learned trial judge was the presence of P.Ws 1 and 2 at or around the scene of occurrence. It is true that the two witnesses are named in the FIR, but it is also the other part of the truth that P.W. 1 is informant’s son in law and he had claimed to have come for purchasing paddy seedlings and was wandering around. When it came to the most important part of the incident regarding the exhortation by appellant Suresh, his evidence in paragraph 5 gets contradicted by the evidence of P.W. 5 in paragraph 9 when he stated that P.W. 1 had not made any statement that Suresh had exhorted to firing and on that appellant Arjun Yadav had fired the shot. Thus, what appears completely negated by the evidence of P.W. 1 and P.W. 5 is that not only P.W. 1 had not stated about any exhortation being given but had also not named Arjun Yadav to have fired a shot. 9. P.W. 2, admittedly, was the Samdhi of the nephew of the injured. He is named as a witness but he has admitted in his evidence that his house was situated at a distance of 2 Kos (that’s 4 miles) from the place of occurrence. The witness has stated that he had come for Rukhsati of his daughter. In fact, while giving his fardbeyan, the informant has named P.W. 2 as his villager. If one 5 could consider the evidence of the two witnesses, one could come to a conclusion that either P.W. 2 was making a false statement or P.W. 4 could not be believed. Both P.Ws 1 and 2 have stated that since the informant was chased, they also climbed up the stairs or a bamboo ladder to go to the first floor and thereafter they concealed themselves behind the doors of the house. A sense of fright was there. This was the reason that he was stating that as soon as Suresh exhorted to fire a shot, he left his buffalo and started running away from the field to safety. This evidence appears in paragraph 2 P.W. 4. The motive could be only to kill him. He was running for life and if he was running for life, then the attempt could have been that the assailants would also enter inside the house. P.W. 2 stated that P.W. 4 was hit when he was getting in to the room. P.W. 1 would say that while the shot was fired, P.W. 4 was braving up by standing in the verandah and was facing the shot fired by Arjun Yadav. This is one simple absurdity, which is contrary to the ordinary human conduct and may be read in contrast to fear suffered by P.W. 4 himself after hearing the words of order falling from appellant Suresh Yadav that he was running for life and if he was running for life, ordinary inference could be that he would equally secure himself as P.Ws 1 and 2 had. This is one absurd statement and evidence of the prosecution which I find myself not persuaded to act upon. 10. There are frailties in the prosecution case. The prosecution has given the primary story of grazing the buffalo and initiation of quarrel on that account. The prosecution has given up in most of the parts the story of appellant Suresh Yadav ordering for the shot which part of the story has been disbelieved by the court below. If these are the frailties, then what I find from the circumstances appearing from the evidence is that might be the occurrence had taken place in some other manner and the prosecution witnesses appear guilty of 6 suppressing the facts. When the prosecution is suppressing the facts, then it is never safe to rely upon them to sustain the order of conviction. 11. The two appeals are allowed. The appellants are acquitted of the charges they have been convicted for. They are discharged from the liabilities of their respective bail bonds. (Dharnidhar Jha, J.) Patna High Court, The 21st November, 2011, NAFR/Anil/