CRIMINAL APPEAL No.61 (DB) OF 1988 ----- Against the judgment of conviction and order of sentence dated 25.01.1988 passed by Sri Dinanath Prasad, 10th Additional Sessions Judge, Bhojpur, Arrah in Sessions Trial No. 6 of 1983. ----- 1. Dwarika Yadav 2. Mundrika Yadav both sons of Rajdeo Yadav 3. Ram Prasad Yadav son of Rajgrihi yadav 4. Rahim Mian son of Subedar Mian all above appellants are resident of village Lillari, P.S.Charpokhari, District Bhojpur 5. Raghuni Yadav son of Ram Dayal Yadav resident of village Ichari,P.S.Jagdishpur, District Bhojpur ------ Appellants Versus The State of Bihar ------ Respondent ----- For the appellants : Mr.Narbdeshwar Prasad Singh For the State : Mr.Dilip Kumar Sinha,Addl.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ----- S.K.Sharma & Akhilesh Chandra,JJ. The aforesaid five appellants have preferred this appeal against the judgment of conviction and order of sentence dated 25th January, 1988 passed by 10th Additional Sessions Judge, Bhojpur, Arrah in Sessions Trial No. 6 of 1983 whereby Rajdeo Yadav (not appellant in this appeal) has been found guilty under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and these appellants have been found guilty under Section 302/149 of the Indian Penal Code and have been sentenced to undergo 2 rigorous imprisonment for life. 2. The brief facts leading to this appeal has resulted from the fardbeyan (Ext.1) which led to registration of Charpokhari P.S.Case No. 51 of 1982 dated 18.7.1982. The fardbeyan was recorded by J.N.Mishra, S.I. of Charpokhari police station at village Madarihan in which informant Ram Pravesh Mahto (P.W.1) stated on 18.7.1982 at 5.00 A.M. that in the preceding night at about 7.30 P.M. he along with his uncle Sukeshwar Mahto (deceased) was returning to his village and when they were crossing the bridge which is about one mile east from village Madrihan and two miles west from Charpokhari, suddenly Rajdeo Yadav (not appellant), Mundrika Yadav, Dwarika Yadav, Ram Prasad Yadav, Rahim Mian and Raghuni Yadav came out from beneath the bridge and caught Sukeshwar Mahto, informant’s uncle, and he was gagged. Due to fear the informant hid himself in Hehar forest and from there he saw that all the accused persons pounced upon his uncle Sukeshwar 3 Mahto and all of them beheaded him. After committing murder, all the accused persons escaped. After seeing occurrence, when the informant proceeded for village Madrihan, his villager Sidhi Sao met him in the way and the informant narrated him about the occurrence. Both the informant and Sidhi Sao instead of going to their village Lillari stayed in village Madrihan and after midnight they went to their village and there they told about the murder of Sukeshwar Mahto to his brother Balkeshwar Mahto (P.W.2) and others. When the informant and others proceeded for Police Station, in village Madrihan, the Inspector of Police (P.W.6) met and he recorded the fardbeyan of the informant. The motive of the occurrence was enmity between the informant and accused persons and the dispute was under litigation before the court. The informant’s uncle was taking care of the interest of the informant, so he was being not tolerated. Fardbeyan resulted in formal F.I.R. (Ext.2).The police arrived at the place of occurrence 4 and seized blood stained soil, two pairs of plastic shoes, one pair black shoe and one cloth bag containing papers relating to litigation. The seizure was made on 18.7.1983. The witnesses of the seizure are Ramagyan Singh (P.W.3) and Brij Bihari Singh (P.W.4). The inquest of the dead body was prepared on the same day at 6.00 A.M. and witnesses P.Ws. 3 and 4 were also the witness of the inquest report. The dead body was sent for post mortem. The case was investigated into and after completion of investigation, chargesheet was submitted. The case was committed to the court of sessions where charges were framed and explained to the accused persons. The accused persons denied their complicity. So, trial proceeded. 3. The defence of the accused persons was of false implication because of enmity and that they were not involved in the offence. 4. The prosecution examined six witnesses to support its case. They are : P.W.1 Ram Pravesh Mahto, P.W.2 Baleshwar 5 Mahto, P.W.3 Ramayan Singh, P.W.4 Brij Bihari Singh, P.W.5 Dr.B.Ram who conducted post mortem examination over the dead body of the deceased and P.W.6 Jainath Mishra, Investigating Officer of the case. 5. P.W.2 is hearsay witness. P.Ws. 3 and 4 are witnesses of the seizure list and inquest report. The trial court after considering the entire evidence as well as other materials brought on record came to the conclusion that the prosecution was able to prove the charges against the accused persons and accordingly order of conviction and sentence was passed. 6. This court has to consider as to whether the evidence of the prosecution witnesses are reliable or not. 7. P.W.2 has stated that at about 7 to 7.30 A.M. while he was at his house, his nephew P.W.1 came and told that Sukeshwar Mahto (deceased) has been killed by Dwarika Yadav, Mundrika Yadav, Rajdeo Yadav, Rahim Mian, Raghuni Yadav and Ram Prasad Yadav. Thereafter this witness along with P.W.1 and Sidhi Sao proceeded for the place of 6 occurrence but in the way Officer-in-charge met them in village Madrihan where statement of the informant Ram Pravesh Mahto was recorded. According to deposition of this witness, he is a hearsay witness. 8. P.Ws 3 and 4 are not witnesses of the occurrence rather they are witnesses only to the extent that blood stained earth and sandal etc. were seized from the place of occurrence in their presence. 9. P.W.5 is Dr.B.Ram who on 18.7.1982 held post mortem over the dead body of deceased Sukeshwar Mahto. The dead body was identified by constable No. 871 Prem Singh (not examined). The doctor found only lacerated wound 4”x 3”x bone deep in the neck on the front. The injury might have been caused by sharp weapon and the death was caused due to shock and haemorrhage resulting the above injury. The post mortem report has been marked as Ext.4. 10. Only eye witness of the occurrence is P.W.1 (the informant). P.W.1 in his evidence has described the manner of 7 occurrence. According to him at about 7 to 7.30 P.M. on 17.7.1982 when he was on the bridge of Saspura Pasaur Ahar, and at that time he was proceeding with his uncle Sukeshwar Mahto (deceased), the accused persons namely, Rajdeo Yadav (now dead and not appellant in this appeal), Mundrika Yadav, Rahim Mian, Prasad Yadav, Raghuni Yadav and Dwarika Yadav pounced upon Sukeshwar Mahto and when he tried to get him rescued, he was gagged by the accused persons. The informant due to fear ran towards Hehar forest and there he concealed himself and saw the occurrence. This witness has further stated that his uncle Kuleshwar Mahto was put on the earth by the accused persons and accused Rajdeo Yadav cut his neck by Pasuli (a sharp cutting instrument). This witness has seen the occurrence from the distance of 10-14 gaj from the place of occurrence. According to him, victim Sukeshwar Mahto died due to that cut injury. After the work was finished, the accused persons ran towards west. This witness has stated that except 8 him nobody has seen the occurrence. When the accused persons escaped, Sidhi Sah (not examined) of his village came there and he told him about entire occurrence. This witness has stated that after midnight the informant returned to his village and informed about the occurrence to Baleshwar Mahto (P.W.2), brother of the deceased. In the next morning, when the informant was going for police station, in the way, he met with Darogaji and his fardbeyan was recorded. Officer-in-charge accompanied with this witness went to the place of occurrence. Some papers were prepared there. The motive of the occurrence was that Etwari Devi, who was grand mother of this witness, sold some land of the share of this witness to accused Rajdeo Yadav. Later on dispute started and proceeding under Section 144 Cr.P.C. was initiated and the interest of this witness was being looked after by the deceased Sukeshwar Mahto. After giving the said fardbeyan, the informant put his signature. The seizure list was prepared. 9 11. According to evidence of P.W.1, the neck of Sukeshwar Mahto was cut by Fasuli and the doctor who has been examined as P.W.5 has stated that the death was caused by sharp cutting weapon. The question to be decided here is as to whether these appellants are responsible for causing death. 12. The case is based on sole testimony of the informant P.W.1 and it is well settled that order of conviction can be passed on the basis of testimony of sole witness but the caution to be adopted is that such testimony must be true and only irresistible conclusion should come that the death was caused as alleged. Therefore with this angle the evidence of P.W.1 has to be looked into. 13. In the fardbeyan there is general allegation that all the accused persons cut the neck of the victim Sukeshwar Mahto. For the first time in court, P.W.1 has stated that the neck was cut by accused Rajdeo Yadav and others namely, these appellants, were catching 10 hold the victim Sukeshwar Mahto. This is an important development and we see no reason that such an important fact was over looked and not stated by the informant when he gave his initial version of the occurrence to the Police. The fardbeyan is never encyclopedia of the entire occurrence but it is the first version in which entire facts must be given. This is the most important fact of the case as to who caused overt act leading to death and non- mentioning of this factual part itself creates doubt as to whether the occurrence has occurred in the manner as stated by the sole witness or not. This appears not only vital lacuna, rather development in the prosecution case. The entire fact which has been stated by P.W.1 after occurrence in village Madrihan and after midnight he left for his village. This fact has been mentioned in the fardbeyan itself as well as this fact has been stated by the witnesses in court. Informant (P.W.1) has not stated that at the time of occurrence, the men were clearly visible because 11 occurrence took place at about 7 to 7.30 P.M. Here the evidence of P.W.2 who is brother of the deceased has to be looked into. He in paragraph 1 of his deposition has stated that at about 7 to 7.30 P.M. when he was at his house, P.W.1 came and informed that Sukeshwar Mahto has been killed by the accused persons. P.W.1 has stated that after midnight he left village Madrihan and reached to his village and informed about the occurrence to Baleshwar Mahto, brother of the deceased Sukeshwar Mahto. If the evidence of P.W.1 is taken into consideration, then the first information given to P.W.2 was after midnight but P.W.2 in the opening part of his evidence has stated that he was informed by P.W.1 at about 7 to 7.30 P.M. on Saturday i.e. 17.7.192, the day of occurrence itself. It appears that the evidence of P.W.1 and P.W.2 on the point of information about the death of the deceased is quite contradictory, confronted and confusing and does not appear to be in the line of the prosecution version as 12 according to P.W.1 when he was going to his village, in the way, Sidhi Sao met and both of them stayed at village Madarihan in the night. The evidence of P.W.2 gets clouded and contradicted by the evidence of P.W.1. P.W.1 has later on clarified that the time of information to P.W.2 was 7.00 P.M. 14. Another point which is to be looked into is that P.W.1 has stated that he saw the occurrence from the Hehar forest which was 10 to 15 gaj away from the place of occurrence. P.W.6 the Investigating Officer was shown the place of occurrence by P.W.1. The place of occurrence has been described as a lonely place and in both the sides there is dense forest of Hehar. Though P.W.1 has exhibited the place where he was hiding himself. P.W.6, Investigating Officer, in paragraph 19 has stated that no trampling mark was found at the place from where the informant is alleged to have seen the occurrence. So the evidence of P.W.1 further gets clouded. 15. The motive behind the 13 occurrence is enmity and the interest of the informant and his persons were looked into by deceased Sukeshwar Mahto but Sukeshwar Mahto was having no enmity with any of the accused, rather enmity of the informant was with the accused for some land(as mentioned in paragraph 44 of the evidence of P.W.1). The enmity, no doubt, remains in the mind of persons who are having it but what type of enmity and to what type of offence. Once enmity is alleged, then the onus to prove it rests upon the prosecution. The enmity of Sukeshwar Mahto has not at all been proved by the prosecution, rather it has been proved that nobody has enmity with Sukeshwar Mahto at all. Not only that, the informant was hiding himself in dense of nearby forest but that assertion is untrue as no one can dare to hide himself nearby the accused persons. Thus it appears to be the situation which also creates doubt in the prosecution version. 16. Learned counsel appearing on behalf of the appellants has submitted that 14 in view of the fact that the evidence of P.W.1 (informant) has been contradicted on all vital points, the appellants are entitled to get the benefit of doubt. 17. On the other hand, learned counsel appearing on behalf of the State has submitted that even on the basis of testimony of sole witness, order of conviction can be passed. This principle of law has been upheld up to the Hon’ble Supreme Court in a number of decisions. 18. No doubt, a person can be convicted on the testimony of sole witness but such testimony must remain intact. It should not give contradictory version of the occurrence. If the testimony of sole witness of this case is exhibited, in that case, the evidence of P.W.1 has remain clouded in view of factual denial of P.W.2 about the time of occurrence and also the finding on the point of hiding of the this witness himself. Not only that the informant has tried to change his version on different occasions. It appears that the first information report was recorded at 15 village Madrihan but in court for the first time he has stated that the first information report was recorded at the Police Station. All these versions create doubt about the genuineness of the evidence of P.W.1. Once the doubt is created, then the benefit of that goes to the accused persons. 19. After analyzing the entire evidence and other materials on record, we are of the view that the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts against the appellants. Accordingly, they are entitled to be acquitted. 20. In the result, the appeal is allowed and the judgment of conviction and order of sentence is set aside. The appellants are acquitted of the charges and they are discharged from the liabilities of their bail bonds. Patna High Court,Patna The Ist December,2010 Tahir/-(NAFR) ( Shyam Kishore Sharma, J. ) ( Akhilesh Chandra, J.) 16