1 CRIMINAL APPEAL (DB) No.173 OF 1989 ----- Against the judgment of conviction and order of sentence dated 11.04.1989 passed by Sri A.P. Shrivastava, Vth Additional Sessions Judge, Munger in Sessions Case No.667 of 1982. ----- 1. Haribole Yadav son of Sheonarayan Yadav, resident of village Pirrahi,P.S.Alauli, District Munger 2. Sonelal yadav 3. Bindeshwari Yadav @ Bindeshwari Prasad Yadav, both sons of Tribeni Yadav, resident of village Ora,P.S.Alauli,District Munger(Khagaria) 4. Kundan Yadav @ Vijay Kumar Yadav, son of Narayan Yadav, resident of village Chhora Patti, Alauli,P.S.Alauli, District Munger (Khagaria) ----- Appellants Versus The State of Bihar ----- Respondent ----- For the appellants : M/s Chittranjan Sinha, Sr.Advocate, Anirban Kundu, Krishna Narayan Jha and Sanjay Kumar Singh For the State : Ms. Shashi Bala Verma, 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 ------ Akhilesh Chandra,J. The four appellants have preferred this appeal against the order dated 11th April, 1989 passed by learned 5th Additional Sessions Judge, Munger in Sessions Case No. 667 of 1982 arising out of Alauli P.s.Case No. 2 (6) 79 holding them guilty under Section 302/34 of the Indian Penal Code and awarding imprisonment for life. 2. The prosecution case, in brief, given in the written information (Ext.2) dated 5.6.1979 by informant Nepali Yadav (P.W.6) is that in the previous night at about 11.00 P.M. one Chandra Shekhar Singh 2 (deceased) was while sleeping at his Kamat on a cot, 10 to 12 persons armed with lathis, bhalas and rods arrived there and assaulted him. He was also chased up to the house of one Gulo Yadav and during course of occurrence, daughter of said Gulo Yadav Dolti Kumari (not examined) also sustained some injuries. On alarm of said Chandra Shekhar Singh, informant Nepali Yadav and other persons namely, Ram Sagar Yadav (P.W.8), Ram Chandra Yadav (not examined) and other villagers arrived there and found Chandra Shekhar Singh in the state of injury and he was brought to his house and was kept on a cot where he disclosed the names of the appellants besides one Sheo Narayan Yadav (died during trial). He succumbed to his injuries at about 5.A.M. in the morning. Under some unavoidable circumstances, the injured could not be brought to Hospital or the police station. It is also the case of the prosecution that Chandra Shekhar Singh was managing the property of his own and his family. His cousin Ram Balak Singh negotiated to transfer two bighas of land 3 in favoaur of Sheo Narayan Yadav at the rate of Rs.5100/- per bigha and Rs.1400/- was paid in advance as earnest money but due to intervention of Chandra Shekhar Singh, the said land was transferred to Ram Sagar Yadav (P.W.8) at the rate of Rs.6000/- per bigha and the earnest money paid in advance was returned to Sheo Narayan Yadav who had developed enmity against Chandra Shekhar Singh and Ram Sagar Yadav and he got also threatened ten days prior to the occurrence by Bindeshwari Yadav. 3. On the basis of written information, Alauli P.S.Case No. 2 (6)79 under Sections 147,148,149,447 and 302 of the Indian Penal Code was instituted and after investigation, the police submitted chargesheet against all the five named accused persons and after commitment of the case, they were put on trial during which one of them Sheo Narayan Yadav died. Only four accused persons faced trial and after conviction and sentence passed against them, they preferred this appeal. 4. In support of the case, the 4 prosecution has examined altogether 12 witnesses, out of whom P.W.l Ram Kripal Pd.Yadav, P.W.2 Ram Bahadur Yadav and P.W.5 Sone Lal Yadav were declared hostile and P.W.4 Perna Devi, P.W.10 Ram Kumar Singh and P.W.11 Harihar Singh were tendered for cross-examination. There is nothing to their evidence for consideration and discussion in detail. P.W.12 Brahmdeo Prasad is a formal witness who proved written information as Ext.2 and the formal F.I.R. as Ext.3. 5. The defence of the appellants is that they have been falsely implicated by the informant who is on inimical term with them and he is the person who got the deceased killed and falsely implicated them. In defence the certified copy of F.I.R. of Alauli P.S.Case No. 14 of 1977 has been filed in order to show that the informant of this case Nepali Yadav was one of the accused in the said case in which the deceased Chandra Shekhar Singh was assaulted by him a year before. 6. It is to be seen in this appeal whether the prosecution has been able to 5 substantiate the charge beyond any shadow of reasonable doubt or the findings of the trial court deserve any interference ? 7. P.W.3 Dr.Shyam Nandan Prasad Singh has conducted the post mortem of the deceased. The prosecution case rests only on the statement of P.W.6 informant Nepali Yadav, P.W.7 Ram Deo Yadav, P.W.8 Ram Sagar Yadav and P.W.9 Rajendra Singh. 8. As per prosecution case which is based on the alleged oral dying declaration of the deceased who is said to have stated about the occurrence and named the appellants and another. Ext.2 did not reveal any person showing as an eye witness. However, P.W.7 Ram Deo Yadav has claimed himself as the person witnessing the entire occurrence and said that at about 11.00 P.M. while he was sleeping at his door, he heard alarm raised by Chandra Shekhar Singh and arrived at his house where he found 10 to 12 persons assaulting Chandra Shekhar Singh and bringing him towards the house of Gulo Yadav. The accused persons were armed with lathis, bhalas, rods etc. He identified five 6 persons including Sheo Narayan Yadav (died during trial) and the four appellants. In paragraph 2 of cross-examination of this witness it is specific that it was a moon- lit night. Further he has stated that he arrived at the place of occurrence with Ram Kripal Pd.Yadav (P.W.1) and Uttim Yadav (not examined). According to him, these three persons arrived first at the door of Ram Kripal Pd.Yadav but Ram Kripal Pd.Yadav who has been examined as P.W.1 did not support the version of this witness and he has not been declared hostile. About informant P.W.6, this witness is specific that he arrived roughly 10 minutes after him but this P.W.7 is not in a position to say about the nature of injuries sustained by the deceased. He has also not found any blood stains on the earth etc. He admits enmity with the appellants and also his relationship with the informant. In paragraph 9 he is specific that at the time of arrival at the place of occurrence except appellants and deceased, there was none but the informant in his written information 7 (Ext.2) has not mentioned about the presence of this witness at the place of occurrence who claims to have remained present for about two hours. This itself creates doubt about the presence of this witness at the place of occurrence. Apart from this, P.W.8 Ram Sagar Yadav who is F.I.R. named witness states that the occurrence took place in a dark night and due to torch flashed by the miscreants outside the village in the way, the villagers could not dare to bring the injured to the hospital or the police station. This also creates doubt about the presence of self claimed eye witness P.w.7 at the place of occurrence or witnessing it. Further P.W.7 if at all was present since initial stage of alleged occurrence for about two hours, he could have also seen the injury sustained by the deceased and hear narrating the happenings with him at the place of occurrence but he remained silent. 9. P.W.8 Ram Sagar Yadav is a witness on the point of oral dying declaration of the deceased, but gives great jolt to his entire assertion when in 8 paragraph 4 of his cross-examination he has stated that when he arrived at the place where the deceased Chandra Shekhar Singh was lying senseless, he was not in a position to say anything and subsequently died in that state of affairs. He has also not stated about the presence of P.W.7 at the place of occurrence. 10. P.W.6 Nepali Yadav is the informant of this case who in his examination-in-chief has stated that he arrived at the place of occurrence after the same being over, but got information through Chandra Shekhar Singh. In the cross- examination he denied any incident at his instance with Chandra Shekhar Singh for which Alauli P.S.Case No. 11 (1) 1977 was instituted against him and others but in pursuance of Ext.A this can be said that this witness has tried to conceal his enmity with the deceased. This witness cannot be relied upon unless his testimony finds corroboration from other witnesses or other materials. Contrary to the evidence of this witness, P.W.8 has stated in paragraph 4 9 that it was a dark night and the fact that the deceased was not in position to make any statement to the witnesses and as such the presence of this witness becomes doubtful. The statement of informant about the oral dying declaration of the deceased cannot be relied upon and the last witness P.W.9 is nothing but he is a hear-say witness who arrived at the place of occurrence on getting information about the death of his brother (deceased). There is nothing relevant for discussion. 11. P.W.3 is the doctor who conducted autopsy of the deceased and found following injuries: (i) Lacerated wound ½”x 1/4” skin deep on the right side of scalp above the eye brow. (ii)A bruise about 2” x 1” on left shoulder. (iii) Twelve bruises on the right side of back of chest ranging from 1 ½”x 1” to 4” x 1”. There were also multiple fracture of the scapula. (iv) Three bruises on the left side of the back of the chest. (v) A small bruise on the left side of throat. (vi) Three bruises overlapping each other about 2” x ½” on the back of left forearm. There were also fracture of radius. (vii) Three bruises about 2 ½”x 1” on right arm. (viii) Two bruises about 3” 10 x 1” on the left thigh. (ix) A few bruises on the right knee joint. (x) A few bruises on the left knee. (xi) Three small bruises on left leg. 12. No doubt, from the above finding of the doctor it is crystal clear that the deceased got several injuries leading to his death but at the same time, this fact also cannot be ignored that he died after about six hours after sustaining injuries but the prosecution side in spite of finding the deceased in injured condition and senseless, failed to provide any medical aid. The reason explained that due to fear of miscreants, they could not go either to the police station or hospital appears to be unacceptable and it further gives rise to the suspicion as raised by the defence about otherwise incident with the deceased wherein the accused persons are facing trial and the appellants might have falsely been implicated. 13. Once a grave doubt is cast against the prosecution version and prosecution failed to remove the same, the 11 defence deserves benefit of such doubt. 14. Non-examination of the Investigating Officer also proves fatal. Besides the motive as alleged by the prosecution, normally in a case of substantial evidence on the occurrence, motive does not play any vital role but in this particular case when there is none to see the occurrence and the case is based mainly on oral dying declaration, the role of motive as per prosecution was enmity between the deceased and Sheo Narayan Yadav, one of the accused who died during trial had suffered loss due to intervention of the deceased in the transaction but no document to support such factum has been produced by the prosecution. Thus, on overall consideration of materials on record and rival contentions advanced by learned counsel for the appellants as well as the State, we are of the view that the appellants deserve the benefit of doubt as the prosecution has not been able to prove the charge against the appellants beyond the shadow of all reasonable doubts. 12 15. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed and the appellants are acquitted of the charge. They are discharged from the liabilities of their respective bail bonds. ( Akhilesh Chandra, J.) Shyam Kishore Sharma,J. I agree. ( Shyam Kishore Sharma,J.) Patna High Court, Patna The 5th January, 2011 Tahir/-(NAFR)