Criminal Appeal (DB) No 481 of 1989 =========================================================== Against the judgment and order dated 23.09.1989 passed by Shri Jag Mohan Bir, Additional Sessions Judge VIII, Munger in Sessions Case No 27 of 1989. Dillo @ Bilo Yadav, son of late Babulal Yadav, resident of village – Dariapur Mai (Mai Dariapur), PS – Munger Mufassil, District – Munger .... .... Appellant/s The State of Bihar Versus .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr Madan Mohan c/o Mr Ganpati Trivedi, Mr Neeraj Kumar Sanidh, Advocates For the Respondent/s : Miss Shashi Bala Verma, APP =========================================================== CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH) 1 When this appeal was called out, having been on the list for quite some time, Shri Madan Mohan, Advocate stated, on instructions from Shri Ganpati Trivedi, the original Advocate on record that the client had taken no objection from Shri Trivedi. From records, we find that thereafter Shri Arvind Kumar Singh Saroj entered appearance on behalf of the appellant but he is no more. The appeal is, thus, technically unrepresented. Shri Madan Mohan, Advocate who is from the chambers of Mr Ganpati Trivedi agreed to assist the Court in the matter which he has ably done. We have heard him and learned counsel for the State. 2 The present appeal is by the sole appellant against his conviction under Section 302 of Indian Penal Code (IPC) by the Additional Sessions Judge VIII, Munger in Sessions Case No 27 of 1989 delivered on the 23rd September, 1989. He has been held guilty of causing the death of Subdha Devi on 29.09.1988 Patna High Court CR. APP (DB) No.481 of 1989 dt.13-12-2011 2 and, as such, sentenced to life imprisonment. It may be noted here that his two elder brothers were also put on trial and charged under Sections 302/34, IPC but they have been acquitted in the same trial. 3 The prosecution case is based upon a Fardbayan of one Upendra Yadav (PW 1) recorded at 11.15 am on 29.09.1988, inter alia, alleging that while he was taking water from a well near the Munger Dairy Farm, he saw the appellant going into the Dairy Farm and dragging the victim out by holding her hair. Having brought her out of the Dairy Farm, one of the brothers handed him a Garasi and asked the appellant to kill her as she had used witchcraft to kill their buffalo. Upon this, the other elder brother caught hold of her arms and the appellant is said to have assaulted her with the Garasi on her neck repeatedly. She fell down bleeding profusely. The appellants then escaped. It is further stated in the Fardbayan that this incident was witnessed by Anjala Devi, the daughter of the deceased being PW 2, Dilip Yadav (PW 8) and Bhola Yadav (PW 6) who are all co-villagers. It is further alleged that there were other villagers and staff of Dairy Farm who have witnessed the occurrence. The informant put his left thumb impression on his Fardbayan which is also attested by Gudar Yadav (PW 3) who is the husband of the victim and is signed by Shyam Kumar Singh, the Officer-in-charge of Mufassil Police Station (PS), District – Munger who is also the Investigating Officer being PW 7. The Fardbayan is Exhibit-2. After the Fardbayan was recorded, an inquest is prepared which has not been brought on record, allegedly blood-stained mud is collected and then the body is sent for post mortem. Upon return to the Mufassil PS, the case is registered at about 5 pm on the same day that is 29.09.1988. Upon the case being registered as Mufassil PS Case No 342 of 1988, police investigated and submitted a chargesheet against the three accused persons who, as noted above, were brothers. They, having pleaded not guilty, were tried and convicted, as Patna High Court CR. APP (DB) No.481 of 1989 dt.13-12-2011 3 aforesaid. 4 In order to establish the prosecution case, prosecution has examined 10 witnesses. It may be noted here that two witnesses, namely, Bimal Kumar Choudhary and Gopal Prasad Gupta, who were employees of the Munger Dairy Farm, were shown as chargesheet witnesses but not produced. On request of the defence, they were summoned. Only Bimal Kumar Choudhary appeared as Court Witness 1 whereas Gopal Prasad Gupta did not appear. The significance of these two is that in fact it was Gopal Prasad Gupta who first saw the dead body outside the Dairy Farm and informed Bimal Kumar Choudhary, Account Assistant in the Dairy who then rang up and informed the police. Police, thereafter, entered a sanha entry and came. Thus, it was Gopal Prasad Gupta who had seen the occurrence and was an independent person who communicated the same to Bimal Kumar Choudhary, another independent witness upon which police came into action. 5 Out of the ten witnesses examined by the prosecution, as noted earlier, Upendra Yadav is the informant (PW 1). In Court, he denies having seen the occurrence. He states that upon seeing the dead body, he came there and police met him and got his thumb impression on a piece of paper. He was, thus, declared hostile. PW 2 is Anjala Devi, the daughter of the victim who claims to be the eye witness. PW 3 is Gudar Yadav, the husband of the victim who has signed the Fardbayan but in his deposition in the Court clearly admits that in the morning of the day, he had gone with his young son to Jamalpur for his medical treatment. He received the message of the death of his wife while he was at home and when he reached there, police had arrived and statement of Upendra Yadav was taken and he signed the Fardbayan. Thus, on his own admission, he is not an eye witness. Further, IO, in his cross-examination, had admitted that Gudar Yadav was never examined in course of investigation. PW 4 is Ramdeo Yadav who is merely a Patna High Court CR. APP (DB) No.481 of 1989 dt.13-12-2011 4 witness to the seizure list in relation to blood-stained mud. Sarjug Yadav (PW 5) has merely been tendered. We then have PW 6 Bhola Yadav and PW 8 Dilip Yadav who, as noted above, has both been named in the First Information Report (FIR) having seen the occurrence. In Court, they state otherwise. They have, thus, been declared to be hostile. This leaves us PW 7 Shyam Kumar Singh, the IO, PW 9 Dr H N Mandal who conducted the post mortem and PW 10 Harendra Singh who is formal who merely produced material evidence from Hajat. Bimal Kumar Choudhary, who was the Accountant in the Dairy Farm and who had rang up the police, had been examined as the solitary Court Witness as inspite of summons, Gopal Prasad Gupta, who saw the occurrence, failed to appear. Prosecution, on record, has brought, by way of Exhibit-5, the Sanha entry when the telephonic message was received from Bimal Kumar Choudhary. Exhibits-5/1 and 5/2 are subsequent Sanhas. 6 Thus, it would be seen that the only witness who claims to be eye witness to the occurrence is PW 2 Anjala Devi, the daughter of the deceased. Learned counsel for the appellant submits that on the evidence of a solitary witness, no conviction should be ordered and/or sustained. In our view, it is too broad a proposition to accept. In our view, it is well established that a conviction can be ordered and sustained in appeal merely on evidence of a single witness provided the witness is unshakable and his testimony cannot be doubted in any manner. Generally, Court would look for corroboration. Thus, in the present case, we have to look to the testimony of this witness to see if conviction can be sustained on her evidence. 7 First, we must note something about the Fardbayan because apart from the cryptic telephonic message received by the police on basis of which Sanha (Exhibit-5) was noted, the Fardbayan is the first record of the event. Fardbayan is Patna High Court CR. APP (DB) No.481 of 1989 dt.13-12-2011 5 supposed to be the statement of Upendra Yadav (PW 1) as if he had seen the entire occurrence alongwith PWs 2, 6 and 8 but when he comes to depose in the Court, he totally denies the aforesaid facts. He states that he had reached the place of occurrence long after the incident had taken place and had not seen anything. He was asked by the Officer-in-charge to put his thumb impression on a piece of paper which he did not know that it contains the Fardbayan. He was, thus, declared hostile. That he was in fact not present stands corroborated by the evidence of PW 2, the daughter and alleged eye witness. In her cross-examination, she has clearly stated that after the assailants fatally assaulted her mother and ran away, Upendra Yadav and others assembled. Thus, the two statements taken together clearly establish that when the assault took place, there was no other person except PW 2 as she alleged. Thus, when Bhola Yadav (PW 6) and Dilip Yadav (PW 8) state that they were not there contrary to what stated in the Fardbayan, they are not wrong though they have not supported the Fardbayan. This firstly establishes that Fardbayan does not depict the true picture. We then come to the evidence of PW 3 Gudar Yadav. He is the husband of the victim. He has signed the Fardbayan as if he was also a witness but in his deposition, he has clearly admitted that he was told of this incident at his home and he came there later. He, at best, could be an attesting witness to the Fardbayan without being a witness to the facts stated therein. His evidence is of no consequence. 8 Now we come to a more interesting aspect in relation to the Fardbayan. Shyam Kumar Singh (PW 7), who is the IO, has clearly admitted in his cross-examination that the Fardbayan was drawn up on his dictation by one Sheo Prasad Singh, SI of Mufassil PS. The said Sheo Prasad Singh had not been examined in the Court. This clearly shows that it is not the Fardbayan of Upendra Yadav (PW 1) nor has the scribe of the Fardbayan signed the Fardbayan that is Patna High Court CR. APP (DB) No.481 of 1989 dt.13-12-2011 6 Sheo Prasad Singh. If these be the facts in relation to the Fardbayan, in our view, it is a useless chit of paper. It is not the statement which it purports to be of Upendra Yadav. It is totally inconsistent with evidence with regard to the presence of various persons mentioned therein including Upendra Yadav and, therefore, it cannot be used even as a corroborative evidence of the event that took place. 9 Now we have to consider the evidence of Anjala Devi (PW 2) in detail as she professes to be virtually the only eye witness. Here, it may be of some importance to note that Bimal Kumar Choudhary, the Court Witness, who was the Assistant Accountant of the Dairy Farm and who had rang up the police, has clearly stated in his deposition that Gudar Yadav (PW 3), the husband of the deceased was the 04th Grade employee of the Dairy Farm. He recognized Gudar Yadav and his wife. He further stated that no outsider was ever allowed in the dairy premises but Gopal Prasad Gupta, the Gateman, who has not been examined, could have similarly identified the deceased but when information is given to the police, it is clearly stated that an incident had taken place outside the Dairy Farm in which a lady had been killed without identifying the lady. This would not have been so if in fact PW 2 was present. She was the daughter and she, in normal course, should have immediately identified her mother to other persons. That apart if we closely examined her deposition in Court, she made a radical change between her deposition in examination-in-chief and her cross-examination in relation to the evidence leading to the fatal assault. There is a reason for the change which we presently show. In her examination-in-chief, consistent with the Fardbayan, she states that she and her mother were cutting grass in the Dairy Farm since morning. The appellant came in the Dairy Farm and holding her hair, dragged her out of the Dairy Farm on to the road and for about 30 yards thereof and then came the fatal assault. She was a witness all along. Here, it may be noted that the deposition of Patna High Court CR. APP (DB) No.481 of 1989 dt.13-12-2011 7 the Court Witness is that no outsider is allowed in the Dairy Farm. Then if a person is dragged for such a long distance on a cemented road, surely he would require a secondary injury also. None is found. Because of these inconsistencies, in her cross-examination, she changes her story. She says that while she was cutting grass in the farm, she carried a bundle of grass on her head and exited the Dairy Farm whereupon she was intercepted by the appellant and his brother and fatally assaulted. The bundle of grass fell down and she died. If this is to be believed then PW 2 was still way inside the Dairy Farm when the assault was made about 40 yards away from the gate on the road and she could not have been a witness to the assault. Thus, her presence itself becomes doubtful. We further are fortified in this by reason that if she was the solitary eye witness and was present when the police came then it is she who should have given her statement which ought to have been recorded as Fardbayan and not the statement of Upendra Yadav who, as per his own statement and the statement of this witness (PW 2), was not present. She could have been made attesting witness to the Fardbayan but neither happened. She was not even witness to the inquest or the seizure. The inquest has not been proved in Court. Further, the husband of the victim has signed the Fardbayan when he was nowhere when the occurrence took place. It is said that blood-stained earth was picked up by the police but the fact remains that the dead body was found on a cement concrete road with no scope of blood-stained mud being taken up. This blood-stained mud allegedly has not even been sent for chemical examination. These facts, if taken together, create a serious doubt as to anyone seeing the occurrence. The IO has seen the place of occurrence but he does not record any objective finding of seeing any grass bundle lying nearby, does not seize any sickle, he does not go in the Dairy Farm to find any where grass being cut by the two ladies or any evidence thereof. Thus, we are left with recovery of the dead body of Patna High Court CR. APP (DB) No.481 of 1989 dt.13-12-2011 8 the deceased from the road with brutal injuries. 10 This apart, the incidence is between 10 and 11 in the day time. There is not a single independent witness to corroborate this fact. Witnesses, who have been brought by the prosecution, only create doubt and more doubt. Defence has clearly alleged motive for false implication. It has been pointed out that the three persons, put on trial, who were brothers, are own nephews of Gudar Yadav. Upendra Yadav is also another nephew. Defence plea has been that they had given substantial land on mortgage to Gudar Yadav and had been trying to redeem it but having no intention to return the land, finding opportunity, they have been falsely implicated. This is what they have stated in their examination under Section 313 of Criminal Procedure Code and is also suggested in the cross-examination of Gudar Yadav. 11 Thus, we find that the testimony of PW 2 is not wholly reliable. It has too many holes. She claims to be the sole eye witness and on such a testimony uncorroborated in material particulars, it would not be safe to uphold the conviction. We, accordingly, set aside the conviction and allow the appeal. The appellant is discharged from the liabilities of his bail bonds. (Navaniti Prasad Singh) (Ashwani Kumar Singh) Patna High Court, The 13th of December, 2011, NAFR, M E Haque/