CRIMINAL APPEAL No.564 of 2004(DB) With CRIMINAL APPEAL NO.553 of 2004(DB) Against the judgement of conviction and order of sentence dated 30.7.2004 passed by Additional Sessions Judge,(F.T.C.No.4)Purnea in Sessions Trial No.223 of 1995/Tr.No.196 of 2002 Cr.Appeal (DB) No.564 of 2004 YOGENDRA YADAV----------------------------Appellant Versus STATE OF BIHAR----------------------------Respondent CR. APP (DB) No.553 of 2004 1.RESHAM LAL YADAV, 2.MISHRI LAL YADAV & 3.SUGAN LAL YADAV-------------------------Appellants Versus STATE OF BIHAR----------------------------Respondent --------- For the appellants:- Sri Anil Prasad Singh, Advocate For the State:- Sri Ashwini Kumar Sinha, APP P R E S E N T THE HON’BLE SMT. JUSTICE MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Mridula Mishra & Dharnidhar Jha,JJ. Appellants of both the appeals have been convicted by the Additional Sessions Judge, Fast Track Court No.4, Purnea under Section 302/34 of the IPC by his order dated 30.7.2004 in Sessions Trial No.223 of 1995/Tr.No.196 of 2002 and sentenced to undergo rigorous imprisonment for life. 2. The case of the prosecution as disclosed in - 2 - the fardbayan of informant Rajendra Prasad Yadav(P.W.2) is that on 30.7.1987 at about 6.45 P.M. he along with his cousin Dinesh Yadav was coming to his home at village-Samoul from bus stand. They were coming through eastern side of canal of village- Bochabhag. Both of them were on foot having cycles in their hand as the road was muddy. Suddenly Dinesh Yadav who was going ahead of the informant was surrounded by Resham Lal, Yogendra Yadav and Mishri Lal Yadav. Resham Lal Yadav caught hold of the handle of the bicycle and asked about teacher, Shobhit Lal Yadav. The deceased Dinesh Yadav raised objection on which Reshasm Lal Yadav ordered and Jogendra Yadav fired at the deceased who fell down receiving fire arm injury. The dead body of the deceased was brought on bullock cart at the police station and the FIR was instituted. The case was investigated and on completion of the investigation chargesheet submitted, cognizance taken and finally the accused was sent up for trial. - 3 - 3. The prosecution examined seven witnesses out of which only P.W.2, the informant of the case has claimed to be an eye witness of the occurrence. Deposition of all other witnesses indicated that they reached at the place of occurrence when already the accused persons had left the place of occurrence. 4. Counsel for the appellants submits that in order to examine the legality and propriety of the trial court judgement, the evidence of P.W.2 and his claim to be an eye witness is to be examined. Counsel for the appellants further submits that though P.W.2 has claimed to be an eye witness but his evidence is sufficient to indicate that he was also not present at the place of occurrence, when incident had taken place. In support of his contention, the counsel for the appellants has given reference of paragraph-20 of his deposition where he has admitted that though he was present at the place of occurrence and came to village immediately after witnessing the occurrence, but he did not disclose the name of the accused - 4 - persons in presence of the villagers. Another example of most unnatural and improbable behaviour of PW-2 is his admission that immediately after the occurrence he picked up his cycle and left the place without thinking about the dead body, lying at the place of occurrence. This witness has also admitted that once he left the place, never visited the place of occurrence and directly went to the police station for recording his fardbeyan. Non disclosure of the names of accused persons by P.W.2 before the villagers is also corroborated from the evidence of P.W.3(Sahjid Mian), first person to reach at the place of occurrence, immediately after the occurrence.PW-2 did not disclose names of the accused persons, even in presence of P.W.3. The claim made by P.W.2 regarding disclosure of the name of the accused persons has been contradicted by the PW-3 in his evidence in paragraph- 6. No other witness has deposed anything about witnessing the occurrence or regarding disclosure of the name of the accused by the P.W.2 before them, in - 5 - order to show their involvement in the murder of the deceased Dinesh Yadav. It has come in the evidence of P.W.2 that immediately after the occurrence he left the place of occurrence. He has admitted in his evidence that on way to his village he crossed different tolas, where residential houses are situated but he did not inform any of them either about the occurrence or regarding the involvement of the accused persons in the alleged offence. Counsel for the appellants has contended that conviction of the appellants on the solitary evidence of P.W.2, not being wholly trustworthy, is not safe as well as in consonance with law. In this view of the matter the judgement of conviction passed by the trial court should be altered. 5. We find substance in the submissions made by the counsel for the appellants, the conduct of P.W.2 being the eye witness and closely related to the deceased, being his cousin, is most unreliable and improbable. We find substance in the submission made - 6 - by the counsel for the appellants that the conduct of P.W.2 as an eye witness do not inspire confidence for relying on his evidence. The deceased being his cousin, his conduct was most improbable and unnatural. His evidence has not been corroborated by any of the witness regarding disclosure of the name of the accused persons immediately after the occurrence. These are the reasons for which we feel that the judgment of the trial court requires interference. Accordingly, it is being set aside. 6. The appellant Yogendra Yadav is in custody, as such he is directed to be released forthwith, if not required in connection with any other case. The three appellants, namely, Resham Lal Yadav, Mishri Lal Yadav and Sugan Lal Yadav are on bail. They are discharged from the liabilities of their respective bail bonds. The aforesaid two appeals are allowed. Patna High Court, Dated 29th of July, 2010, Brajesh Kumar/NAFR ( Mridula Mishra,J. ) ( Dharnidhar Jha, J. )