CRIMINAL APPEAL No.509 OF 1988 ---------- Against the judgment and order of conviction and sentence dated 26.08.1988 passed by 2nd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 87 of 1987. ---------- 1. Budhdeo Sahni, Son of Late Sukan Sahni, resident of Village- Mushari, Bishunpur Chand Tole Bidaulia. 2. Shankar Sahni, Son of Late Ram Balak Sahni. 3. Sagar Sahni, Son of Late Dwarik Sahni, resident of Village- Nawada Tole Bidauli, Police Station-Mushari, District- Muzaffarpur............................................................Appellants. -Versus- The State of Bihar..................................................Respondent. ---------- For the appellants: Mr. Chitranjan Sinha, Senior Advocate and Mr. Krishna Narayan Jha, Advocate. For the State : Sushri Shashibala Verma, A.P.P. ---------- P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON'BLE SRI JUSTICE DINESH KUMAR SINGH Dharnidhar Jha & D.K.Singh,JJ. The three appellants were put on trial by the learned 2nd Additional Sessions Judge, Muzaffarpur, by framing charges under Sections 302/34 and 201 of the Penal Code in Sessions Trial No. 87 of 1987. By judgment dated 26.08.1988, the appellants were found guilty of committing the offences under Sections 302/34 and 201 of the Penal Code and were directed to 2 undergo rigorous imprisonment for life and for a period of three years respectively for their convictions. The appellants have preferred the present appeal for assailing the findings recorded by the learned 2nd Additional Sessions Judge and sentences passed upon each of them. The First Information Report was lodged by P.W.5, Sunaina Devi, who was the mother of the deceased, Ashok Ram, against appellant no.3, Sagar Sahani only describing him to have committed the murder of her son who had been hired by the appellant Sagar Sahani for tapping toddy for selling it on a monthly salary of Rs. 300/- besides meals and clothes. It was stated that on 04.10.1986 the informant had been informed by appellant Sagar Sahani that her son had brought down toddy from palm trees and she should collect it for sale. Accordingly, P. W. 5, collected the toddy and put it into a shop at a particular place as stated in the fardbeyan. It was stated further that she wanted to go across a Man(it is a big deep ditch full of water which is generally created by turbulent flood water). She stated that some persons were fishing in the river and she 3 requested them to take her across on the other side of it. But, they did not pay any heed to her request and took their boat to some distance in the ditch. The lady found herself high and dry and just could not find out as to how she could get across. While stranded there, she saw a dead body floating on the surface of the water which she identified to be of her son. She alleged that the appellant Sagar Sahani had probably killed him. Investigation was taken up by drawing up the First Information Report(Ext.5) on the basis of fardbeyan of P.W.5 which has been marked as Ext.1 in the case. On close of the investigation, the three appellants were sent up for trial which ended in passing of the impugned judgment. The prosecution examined as many as 14 witnesses, out of whom P.W.1 Sita Ram Mahto, P.W.2 Shankar Mahto were declared hostile. P.W. 3, Damru Sahani was tendered for cross- examination whereas P.Ws. 6,7 and 8 were mere witnesses of formal character and signed on the fardbeyan as witnesses. P.W. 10, Sri Deepak Kumar Sinha was the Judicial Magistrate posted in Muzaffarpur and he recorded the statement of 4 P.W.4, Vishwanath Paswan under Section 164 Cr.P.C. P.W. 4, Vishwanath Paswan claimed himself to have seen the occurrence and had deposed as such. P.W. 5, Sunaina Devi is the informant as pointed out just now. P.W.11 Dr. Binod Kumar Mehta was the doctor who held post mortem examination on the dead body of Ashok Ram and issued a report which has been marked Ext. 4 in the case. The two police officers, A.S.I. Sheo Chandra Singh(P.W.12) and S.I. Nikhila Nand Das(P.W.14) were also examined. P.W.12 was the witness who proved the formal F.I.R., whereas P.W.14 stated on the facts as to how the investigation was carried out. P.W. 13, Bhikhari Rai had deposed on facts which were also deposed to by P.W.9, Satahu Rai and both of them stated that there was some altercation between the appellant Sagar Sahani and the deceased in the day on 04.10.1986 and further that they had seen the dead body of Ashok Ram and identified it. The learned trial court after considering the evidence of the above witnesses found that P.W.4 Vishwanath paswan is an eye witness to the occurrence. His evidence was found reliable by the trial court who found his 5 evidence being corroborated by the opinion of the doctor. It was further found by the learned trial court that the appellant Sagar Sahani had motive for committing the offence, and as such, convicted the three appellants as he found the remaining two appellants Budh Deo Sahani and appellant Shankar Sahani having aided appellant Sagar Sahni in commission of the offence. The solitary argument was that if the evidence of a solitary eye witness is found wholly reliable then there could be no difficulty for any court either to convict an accused or to uphold the conviction. It was contended that the evidence of an eye witness can not be said to be wholly reliable when the same was also not being corroborated by P.W.11, Dr. Binod Kumar Mehta. It was contended that other evidence were not material. There was no motive assigned in the F.I.R. for committing the offence. If the prosecution appears developing the story that appellant Sagar Sahani committed murder of Ashok Ram with the help of the remaining two appellants, only because the deceased was keeping a liaison with his niece, the learned judge overlooked the evidence of the prosecution as regards the 6 motive assigned by the prosecution witness specially of P.W.4 in paragraphs-1 and 5. Sushri Shashibala Verma has contended that P.W. 4 is the solitary eye witness. Though inconsistent in his deposition, his evidence was found to be wholly reliable. We have gone through the evidence of P.W.4. From the evidence brought on record, it appears that he has claimed himself to be the eye witness of the occurrence. Besides, if one goes through his cross-examinations, one may find that there are variations in his statement. The evidence of a witness can be said to be reliable only when he does not contradict his statements made in his examination-in-chief while being cross-examined on those facts. The parameters upon which the testimony of an eye witness is decided are the statements made by him in the examination-in- chief and the cross-examination. As may appear from the prosecution story, the murder was allegedly committed by the appellants in the night intervening 4 and 5.10.1986 and the dead body was recovered in the early hours of the day on 05.10.1986. As the fardbeyan was given by P.W.5 at 10.30 A.M., it could be said that 7 the dead body had already been recovered prior to the lodging of the report. Dr. Binod Kumar Mehta, P.W.11, who held post mortem examination, had described the findings as regards the injuries on the dead body. In his evidence he has stated that the deceased Ashok Ram was murdered by being strangulated to death by some one else. What concerns us is that in his evidence in paragraph-4, the Dr. has stated that the time since death and the post mortem examination held was within 72 hours and if some margin was to be given in assessment of time of death then also it may extend to 78 hours. It is apparently clear from the evidence that a dead body was found floating on the surface of water. The dead body could not float simply after being put into water. It will, firstly, sink in water and then come out by and by on to its surface. The dead body comes out of the water and floats on the surface only when it loses its density. Admittedly, the dead body can be seen only when it was floating on the water and lost its density and that would have taken a longer time. The doctor( P.W.11) in his post mortem report is opining that the death might have occurred within 78 hours. 8 Thus we find that the opinion of P.W.11 that death might have occurred 78 hours earlier to the time when the post mortem examination was done on the dead body appears a probability to us. P.W.11 had held post mortem examination on 06.10.1986. He has not stated as to at what time he had held post mortem examination. He had exhibited post mortem examination. The document( Ext.4) is available on the lower court record and it is indicated by it that the post mortem had started at 11.10 A.M. If the time of death was taken to be put back to 72 hours from 11.10 A.M. on 06.10.1986, the time of death can never be in the night intervening 04 and 05.10.1986. This is one aspect of the case upon which we can say that the evidence of P.W.4 could not be said to be wholly reliable. The other aspect on which we can not accept that the evidence of P.W.4 as wholly reliable, is his own evidence. In paragraph no.1 of his evidence at page 11 of the paper book he has stated that he found the three appellants committing murder of the deceased and during that course he saw the appellant 9 Sagar Sahani catching hold of the deceased by his neck while the remaining two appellants were holding his legs and arms. The occurrence, according to P.W.4, had taken place at about 10.00 P.M. in the night intervening 04 and 05.10.1986. The first information report was lodged by the informant on 05.10.1986 at 10.30 A.M. If P.W.4 had seen the three appellants committing the murder of the deceased, it can be legitimately expected of any person that he can go to inform the whole of the world as to what role he had seen played by the three appellants. He has stated in paragraph-2 that he made his statement before the Investigating Officer of the case after 04-05 days of the occurrence and also before the Magistrate thereafter. We could not get any reason from the evidence of P.W.4 as to why he was not making his statement about the occurrence in spite of having seen it being committed with his own eyes. After considering the above circumstances, we do not find the evidence of P.W.4 as reliable as it was found by the learned trial court, and as such, it can not be safe for the court to convict the appellants on 10 that basis. We further feel that his evidence was not of such quality upon which any reasonable person can act to convict the appellants of offences under Sections 302 and 201 of the Penal Code and direct them further to suffer imprisonment for life as directed by the trial court. In the result, we find the appeal meritorious and, accordingly, we allow the appeal by setting aside the order of conviction and sentence passed upon each of the appellants. The three appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. Patna High Court Dated 22nd July,2010. U.K./N.A.F.R. (Dharnidhar Jha,J) ( Dinesh Kumar Singh, J.)