CRIMINAL APPEAL No. 96 OF 2009 Against the judgment dated 16.12.2008 and sentence dated 18.12.2008 passed by Shri Chandra Bhan Singh, Additional Sessions Judge, Fast Track Court No.-VIII, Purnea in Sessions Case No. 323 of 2002/Tr. No. 202 of 2006 arising out of K. Hat P.S. Case No. 143 of 2001, G.R. No. 800 of 2001; *** *** 1. AJAY YADAV 2. SANJAY YADAV ------------------------Appellants Versus STATE OF BIHAR ----------------Respondent For The Appellants:- Mr. Radhey Shyam Prasad Mr.Praveen Kr. Agarwal, Advocates For The State:- Mr. Ashwini Kr. Sinha, A.P.P. ********** P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE JUSTICE SHRI DHARNIDHAR JHA --------- Mridula Mishra & Dharnidhar Jha, JJ:- This appeal has been preferred against the judgment and order dated 16.12.2008 and 18.12.2008 respectively passed by the Additional Sessions Judge, Fast Track Court No.8, Purnea in Sessions Trial No. 323 of 2002 Trial No. 202 of 2006 arising out of K.Hat Police Station case no. 143 of 2001, G.R. No. 800 of 2001, whereby the appellants have been convicted for offences under Sections 364,302,201 of the Indian Penal Code and sentenced Rigorous imprisonment for life under Section 302 of the Indian Penal Code and fine of 2 Rs. 20,000/- , in default of payment of fine, they have been awarded further two years imprisonment. The appellants for conviction under Section 364 of the Indian Penal Code have been sentenced rigorous imprisonment for ten years and for conviction under Section 201 of the Indian Penal Code rigorous imprisonment for five years. The fine imposed as per the direction in the impugned judgment has to be paid to the widow of the deceased. In case the widow is not present, the legal heirs of the deceased. 2. Bidyanand Prasad Yadav (P.W.8) the informant gave a written report at K.Hat Police Station on 8.5.2001 at 10.30 A.M. informing that on the same day he along with his elder brother Basudeo Prasad Yadav had come to Purnea for purchasing new radiator (Readywater) for tractor. They had also brought the old radiator for its repair. They came at the shop of Guddu Mistri, which is situated at near Ford Company, Shiv Mandir and asked Guddu Mistri to repair the old radiator (ready water) and also requested Guddu Mistri to go with them for purchasing the new radiator. The Informant along with his brother and Guddu Mistri came to a shop situated south to Ford Company for purchasing radiator. At about 9.15 A.M. one white colour sumo car came and 3 stopped by the side of the road. Three persons came out from that sumo Car and the informant identified two of them being his villagers Sanjay Yadav and Ajay Yadav. The third person could not be identified by him. These three persons came near the shop where the informant and his brother were standing and tried to catch them. Informant managed to free himself and ran away. Those three persons thereafter caught his brother Basudeo Yadav and dragged him to the car and seated in the Sumo Car and kidnapped for killing him. In the written report the Informant has admitted that the land dispute is going on with Ajay Yadav and Sanjay Yadav and the cases are pending in Court. The informant claimed that because of old enmity the accused persons have kidnapped his brother Basudeo Yadav and taken away him for the purposes of killing him. 3. On the basis of this written report K.Hat P.S. case N0.143 of 2001 was instituted under Sections 364, 302, 201 of the Indian Penal Code against the appellants and one unknown person. The case was being investigated but as per the evidence of P.W.8 the informant, it transpires that on 08.05.2001 itself the dead body of his brother was found by the Chowkidar near Toopamari Bridge at Kochadham, he gave information at Kochadham Police Station 4 and on the basis of his fardbeyan Kochadham P.s. case No. 25 of 2001 was instituted against unknown. The dead body was sent for post mortem on 8.5.2001 at 9 P.M. and on the next date i.e. 9.5.2001 at 9 A.M. post mortem was conducted by Dr. V.S.Das, Civil Assistant Surgeon, Sub- Divisional Hospital, Kishanganj. Since the dead body was not claimed by any one, as such after being photographed it was buried. Subsequently on 13.5.2001 the Officer In-charge of K.Hat Police Station called the Informant at Police Station where Officer In-charge of Kochadham Police Station was also present. The Officer-in-charge of Kochadham P.S. has shown him the photograph of unclaimed dead body, which he identified as Basudeo Yadav his brother. The Informant thereafter accompanied the Officer In-Charge of Kochadham Police Station and came at Kochadham. The buried dead body was exhumed and he identified the dead body of his brother. P.W.8 in para 5 of his evidence has stated that he had gone to Kochadham along with his villagers and he gave mukhagni to his brother according to Hindi rites at Kochadham and dead body was again buried. Investigation of Kochadham P.S. case No. 25 of 2001 and K. Hat P.S. case No. 143 of 2001 were conducted by the same Investigating 5 Officer, Charge-sheet was submitted against two named accused persons of K.Hat P.S. case No. 143 of 2001. The Magistrate took cognizance of the offences and committed the case to the Court of Sessions for trial. Statement of accused persons were recorded under Section 313 of the Code of Criminal Procedure where they denied their participation in the offence. They pleaded innocence and also of false implication, on account of previous enmity. 4. The prosecution in order to prove the charges framed against the accused persons examined eleven witnesses. Out of these witnesses P.W.1, P.W.2, P.W.6, P.W.7 and P.W.9 were declared hostile as they did not support the case of the prosecution. P.W.3, P.W.4, P.W.5 were tendered for cross-examination. They also did not support the case of the prosecution. P.W.10 is the formal witness, who proved the Inquest Report as the Investigating Officer of the case was not examined. P.W.11 an Advocate’s clerk, proved post mortem report of Kochadham P.S. case no. 25 of 2001 as the doctor who conducted the post mortem on the dead body of the deceased was also not examined. One and only witness who supported the case of prosecution is P.W.8 Vidayanand Prasad Yadav, 6 informant of the case and brother of deceased Basudeo Prasad Yadav. 5. The veracity of this witness has to be examined in the background of admitted enmity as disclosed in the written report submitted for institution of the case and his deposition in course of trial. 6. P.W.8 is the solitary witness deposing in favour of the prosecution as all other witnesses have declined to support the case of the prosecution. This witness has stated in his examination-in-chief that on the date of occurrence i.e. 8.5.2001 at about 9.15 A.M. he came to Purnea along with his brother Basudeo Prasad Yadav for purchasing new radiator of the tractor and had also brought the old radiator for its repair. They went to Guddu Mistri, near Ford Company Shiv Mandir for repair of old radiator and also for purchasing new radiator. They along with Guddu Mistri came to Dibakar Tractor parts shop. While they were standing at the shop a white coloured sumo Car came and stopped near the Road, three persons came near the shop and tried to catch P.W.8 and his brother. P.W.8 managed to get himself free from their catch but his brother Basudeo Prasad Yadav was caught by those three persons and taken away in the Sumo Car for 7 killing him. The Informant came to Police Station and got prepared a written report by Pradip Rai, before coming to police station and gave it to the Officer In-charge of K.Hat Police Station, putting his thumb impression, for instituting a case. He has claimed to identify both the accused persons, since on the date of deposition; they were not present in dock. P.W. 8 has further deposed that on 13.05.2001, the Officer In-charge of K.Hat Police Station has sent a message at his house, for coming to the police station, which he came to know when he returned back from Banmankhi. He went to K.Hat Police Station, where the Officer In- charge of Konchadham P.S. was also present. He has shown him a photograph, which he identified as the photographs of his brother Basudeo Prasad Yadav. The Officer In-charge Kochadham Police Station informed him that dead body of his brother was found near Toopamari Pool on 8.5.2001. The dead body was sent for post-mortems and thereafter buried at Kochadham Police Station. The informant had gone to Kachadham along with Dhyani Yadav, Jagdish Yadav, Naresh Yadav, Devendra Jha, Deon Yadav with the Officer In- charge. The Officer In-charge of Kochadhaman P.S. recorded his statement and brought him at the place where the dead body of his brother had been 8 buried. The dead body was exhumed and he identified it. Thereafter, he did last rites of his brother as per Hindu rites and rituals by giving mukhagni. In his cross-examination, this witness has disclosed that his village is at a distance of 42- 43 kilometers from Purnea. On the date of occurrence, for coming to Purnea he and his brother had boarded a train at Janki Nagar Station at 06.30 and came to Purnea Court station at 8.45 A.M. From Station they came on Rickshaw near the Ford Company and immediately met with Guddu Mistri. 7. Counsel for the appellants submits that from the evidence of P.W.8, it is indicated that FIR was instituted on the basis of report and writer of this written report was Pradeep Rai. In para 11 of his evidence P.W.8 has admitted that Pradeep Rai is still alive, despite this fact Pradeep Rai has not been examined. In para 5 of his deposition P.W.8 has disclosed name of Dhyani Yadav, Jagdish Yadav, Naresh Yadav, Devendra Jha and Deon Yadav who accompanied him to Kochadhaman on 13.5.2001 but none of these persons have been examined to corroborate the statement of P.W.8 that actually on 13.5.2001 he had gone to Kochadhaman and identified the dead body of his brother as well as conducted his last rites. 9 Counsel for the appellants submits that non- examination of these persons as well as the Officer in charge of Kochadhaman Police Station as well as Investigating Officer of present case, naturally creates a doubt regarding the correctness of the deposition of P.W.8 that he went to Kochadhaman on 13.5.2001. This lacuna on the part of the prosecution evidence creates a genuine doubt regarding the institution of K.Hat P.S. case No. 143 of 2001 on 8.5.2001 at 10.30 A.M. and visit of P.W. 8 to Kochadhaman on 13.5.2001. This doubt is further strengthen by this fact that the First Information Report of K.Hat P.S. case No. 143 of 2001 was instituted on 8.5.2001 at 8.30 A.M., but same could be presented before the Chief Judicial Magistrate, Purnea on the next day i.e. 9.5.2001, though hardly there is distance of one kilometer in between the police station and the Court. This delay creates a doubt regarding institution of First Information Report is on 08.05.2001 and strengthen this view that FIR is an anti-dated document. Though it is said to have been instituted on 8.5.2001, but in fact it was instituted on 9.5.2001. There is all probability that the prosecution story regarding kidnapping of informant’s brother on 8.5.2001 at 9.15 A.M from the place near Ford Company is nothing but an 10 imaginary story. Probability is that the informant received information regarding the recovery of dead body of his brother at Kochadham on 9.5.2001 and after returning from Kochadham he got instituted the case by anti-dating it in which two appellants’, with whom animosity is admitted in the fardbeyan as well as in the deposition of P.W.8, were named as accused. 8. Counsel for the appellants submits that since initial document like fardbeyan, on the basis of which the prosecution of the appellants have been initiated, if found to be doubtful and not a genuine document, in that case entire prosecution becomes illegal and the conviction of the accused on the basis of such prosecution, fit to be quashed. 9. Counsel for the appellants in support of his contention that First Information Report is an anti-dated document has also submitted that this is the reason that prosecution did not make any effort for examining the Investigating Officer, Pradeep Rai, who is the writer of the written report and all Other persons who accompanied the informant to Kochadham on 13.5.2001. None examination of these relevant and important witnesses also creates doubt regarding the correctness of this fact that FIR was instituted on 8.5.2001 at 8.30 A.M. 11 10. Counsel for the appellants has placed reliance decisions in the case of Hallu and others Vs. State of U.P (AIR 1974 SC 1193), Om Prakash Vs. State of U.P. ( 2008 (17) SCC 249 and Bhusai @ Mohammad Mian and others vs. State of U.P. ( 1971 SCC (Cri) 66) in support of his contention that conviction on the basis of an anti dated FIR is not sustainable. 11. Another ground which has been taken by the appellants for assailing the judgment of conviction and the order of sentence, is that the prosecution examined eleven witnesses, out of them only the informant P.W.8 has supported the case of prosecution. All other witnesses, than P.W. 8, were declared hostile. P.W.8 is the own brother of deceased. He has admitted enmity with the appellants in Para 13,14,15,16,17 and 18 of his deposition. In Para 13, P.W.8 has deposed that father of accused Sanjay had purchased two bighas of land by impersonating a person as a Mahanth of Math, after the death of earlier Mahanth Bhagwan Das. The present Mahanth of this Math, his brother Raghav Das has raised dispute regarding this purchase and did not allow the father of accused Sanjay to take possession over the purchased land. Father of Sanjay, namely, Ram Chandra has filed a suit for recovery of 12 possession over the land. In Para14,15,16,17 and 18 he has given reference of several civil and criminal cases which has been instituted either by the brother of the Informant, Raghav Das against the accused-appellants, his brother Dhananjay or by the accused and his brother against the informant and his brothers. 12. Counsel for the appellants submits that in the background of admitted enmity on account of all these cases in between the parties instituted prior to the date of the occurrence, the question pertinent for consideration is whether placing reliance on un-corroborated evidence of solitary witness, the trial Court could have passed a judgment of conviction. The solitary evidence of P.W.8 has not been corroborated by any other witness, even the Investigating Officer, the doctor and the Investigating Officer of Kochadham Police Station was not examined. Pradeep Rai and other villager who accompanied the informant to Kochadham, were also not examined. Witnesses who have been examined they also were declared hostile, since, they were not inclined to support the case of the prosecution. In the facts and circumstances of the case, conviction of appellants on the basis of solitary evidence of P.w.8, who 13 himself has admitted enmity with the appellants, is not sustainable and must be set aside. 13. Counsel for the appellants has placed reliance on decisions in the case of Narnail Singh Vs. State of Punjab ( 2009 (3) SCC 391), Hasan Murtaza Vs. State of Haryana ( 2002 (3) SCC 01), Joseph Versus State of Kerala ( 2003 (1) SCC 465) and Sabitri Devi & Govind Mishra Vs. State of Bihar ( 1996 (1) PLJR 226) in support of his contention that conviction on the basis of uncorroborated evidence of solitary witness who has admitted his enmity with the accused is not legal. 14. The Informant in para 4 of his deposition has stated that on 13.5.2001 the Officer-In-charge of Kochadham P.S. sent an information at his residence to him. In para 6 of his deposition he has stated that the distance of his village from Purnea is 42- 43 kilometres. The Informant has admitted in para 4 that on 13.5.2001 when message of I.O. was received by inmates of his house, he was not present at his residence, as he had gone to Banmankhi. After coming back from Banmankhi, he went to Kachadham Police Station and thereafter accompanied the Officer In-charge of Kochadham P.S. He has not disclosed whether on the same day i.e. 13.5.2001 he went to Purnea. He 14 has not disclosed as to on which date he accompanied the Officer In-charge. In para 19 of his deposition he has stated that the dead body was exhumed and reburied but till that date the dead body was not decomposed and neither any foul smell was coming out from it. The post mortem report indicates that post mortem was conducted on 9.5.2001. The dead body must have been buried on that very day. It was the month of June and summer time, in case the dead body was exhumed on 13.5.2001, then there was all possibility that the decomposition of the body must have started and found smell coming from it. In such circumstance, it is possible that the dead body must have been exhumed in presence of the informant on 9.5.2001 itself, as then only there would not have been any decomposition of the dead body and foul smell coming from it. This also supports the submission of the appellants’ counsel that after coming from Kochadham P.S. on 9.5.2001 the informant could have given written report by anti-dating it and then only it was presented before the Chief Judicial Magistrate on 9.5.2001. I find substance in the submission made regarding ante-dating of the FIR. 15. So far the solitary and uncorroborated evidence of Informant is concerned, in the 15 background of his admitted enmity it was not sufficient to hold the appellants guilty and convict them for offences under Sections 302,364 and 201 of the Indian Penal Code. 16. The submission made by the appellants’ counsel with regard to anti- dating of the First Information Report and the conviction based on solitary and uncorroborated evidence of P.W.8, in the background of admitted enmity is sufficient for holding that the prosecution has not been able to prove charges framed against the appellants beyond all reasonable doubts. 17. Considering these facts, we are of the opinion that the judgment of conviction and the order of sentence passed by the trial Court is fit for interference. Accordingly the impugned judgment and order dated 16.12.2008 and 18.12.2008 is set aside. Both the appellants are acquitted of the charge framed against them. 16 Appellants conviction and order of sentence quashed. Both the appellants are in jail, as such they are directed to be released forthwith in case not wanted in any other case. 18. The appeal stands allowed. (Mridula Mishra,J.) (Dharnidhar Jha,J.) Patna High Court Dated 27th August, 2010 A.Kumar/NAFR