CRIMINAL APPEAL No.323 OF 1993 Against the Judgment and Order dated 18th of September,1993 passed by Sri Gopal Prasad, Xth Additional Sessions Judge, Gaya in Sessions Trial No.511 of 1989/131 of 1992. -------- 1.KAUSHAL LAL, Son of Sri Shridhar Lal, 2.BALMUKUND PRASAD, Son of Prakash Mahto, 3.RAM CHARITAR PRASAD, son of Meghan Mahto, 4.BINDESHWARI MAHTO, son of Pachu Mahto, 5.KARU MAHTO, son of Bhui Mahto, 6.BOHAN MAHTO, son of Piru Mahto, 7.MANSOKHI YADAV, Son of Pun Yadav, 8.ZAHIR MIAN, Son of Bafati Mian, 9.BANDHU MAHTO, Son of Hiraman Mahto, 10.PREMAN MAHTO, Son of Lachhu Mahto, 11.DILIP PRASAD, Son of Kesho Mahto, 12.SUKHDEO MAHTO, Son of Bhanu Mahto, 13.BASUDEO MAHTO, Son of Bhimar Mahto, 14.JAGARNATH MAHTO, Son of Bhimar Mahto, 15.INDRADEO MAHTO, Son of Bhui Mahto & 16.KAMALDEO PRASAD, Son of Punit Mahto. All residents of village Adalpur, P.S.Barachatti, District- Gaya. ------------------------------------------------Appellants. V E R S U S STATE OF BIHAR----------------------------------Respondent. ------------ For the Appellants : M/s. Shakil Ahmad Khan, Senior Advocate, Ajay Kumar No.1, Mustaq Alam and Md. Sharfuddin, Advocates. For the State : Mr. Dasrath Mehta, A.P.P. ---------- P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The 16 appellants were put on trial in Sessions Trial No.511 of 1989/131 of 1992 for a composite charge under Sections 144, 436/149, and 427 of the Penal Code. The - 2 - appellant Kamaldeo Prasad was separately charged for committing the above noted main offences under Section 436 of the Penal Code. By the judgement and order of conviction passed on the 18th of September, 1993, the learned Xth Additional Sessions Judge, Gaya found the appellants guilty on all counts as indicated above and directed the appellant, namely, Kamaldeo Prasad to suffer rigorous imprisonment for three years under Section 436 IPC, for four months under Section 427 IPC and three months under Section 144 of the Penal Code. The remaining 15 appellants were directed to suffer rigorous imprisonment for two years for their conviction under Sections 436 read with 149 IPC, imprisonment for four months for their conviction under Sections 427/149 IPC and three months each for their conviction under Section 147 of the Penal Code. The sentences were directed to run concurrently. The appellants have challenged the conviction and the sentences passed against each of them in the present appeal. The incident relates to an occurrence allegedly taking place on 29.4.1988 for which the informant P.W.6 - 3 - Mahavir Bhuiyan lodged the fardbayan (Ext-1) in which he stated that at about 2 P.M. all the appellants armed variously with weapons and spade came at a hamlet and started demolishing houses of Mina Manjhi(P.W.1) and Nanhak Bhuiyan(P.W.4) and also took away certain properties including the thatched roof and other materials used in construction of the houses. It was lastly alleged that appellant Kamaldeo Prasad set fire by lighting a matchstick to the house of P.W.6 on account of which the house as also the properties kept therein were completely gutted. The people who were looking at from all around the place of occurrence, could not muster sufficient courage out of fear for the appellants, to come and protest the highhanded acts. It was stated in the FIR itself that the land on which the house of the informant and other persons was situated was a Gair Majarua Aam land and that the informant and others had applied for the same being settled to them and the matter was pending with the revenue authority. Thus, the informant alleged that in order to take possession of the public land the appellants had committed - 4 - the offence. Seven witnesses were examined during the course of trial. The two victims of the alleged arson , namely, Mina Manjha(P.W.1) and Nanhak Bhuiyan(P.W.4), did not state a single line in support of the charges or the prosecution story and as such, they were declared hostile. Similar was the evidence of P.W.2. Bali Bhuiyan and P.W.5. Kajaru Bhuiyan. As regards P.W.3 Sahrai Bhuiyan, he was tendered for cross-examination. The solitary support came to the allegations from the informant of the case examined as P.W.6 as already indicated above. The learned senior counsel, Sri Shakil Ahmad Khan has taken me through the evidence of the P.W.6 Mahavir Bhuiyan and after going through the same what appears to the court is that the informant and other persons of the hamlet attempted to get the settlement in their favour. The informant admitted that the enquiry in that behalf was made by the L.R.D.C. and he had made a report that the land was being used for the public purposes and, as such, it was never advisable to settle the same in favour of any person. The informant admitted that there - 5 - had been dispute for the land between the persons of the hamlet and the villagers on taking possession or causing dispossession of the informant and others and for that there had been some proceedings of prohibitory nature under Section 107 Cr.P.C. and at the same time he admitted that as soon as the L.R.D.C. made the report, the proceedings under Section 107 Cr.P.C. was dropped by the S.D.M. (Kindly refer to paragraphs 5 to 10 of P.W.1). This also appears admitted by the informant in paragraphs 20 and 21 that the L.R.D.C. had made a report disfavoring the land being settled to the informant and others for which they were striving. It was reported that there would be no public land for being used as cremation ground, as a mela ground as also for grazing the cattle. The above admission of P.W.6 could indicate as to how serious the issue would have been and how seriously the informant and other persons could be striving for getting a settlement for such an important public land in their favour. In the above backdrop, it was contended that the informant appears a greedy person and he was probably appearing to grab - 6 - a land and the possibility may not be ruled out that he could implicate the appellants falsely and as such, it was contended by drawing the attention of the court to paragraphs 20 and 21 of evidence of P.W.6 that in fact the informant had not seen the occurrence and had lodged his report on false allegations projecting himself as an eye witness. The informant in paragraph 20 of his evidence has stated that when he came back from a particular place after the incident at about 3 P.M. he was informed by his wife as also his children as to how the occurrence had taken place. The wife has not been produced nor any of the children of P.W.6 came forward for deposing in court that they had really informed P.W.6 about the incident and the manner thereof. Thus, this single line of the evidence of P.W.6 takes the air out of the sail of the prosecution story. A conviction can very well be based on the evidence of a solitary witness if his evidence inspires the confidence of the Court in recording such a find. If the evidence is found acceptable and trustworthy, the evidence of a single witness could be sufficient in basing a finding of guilt of an - 7 - accused, for, no particular number of witnesses is required to be examined for proving a fact.(see Sec.134 Evidence Act). As such, the view that it is the quality that matters in a judicial probe and it is never the number of witnesses. After considering the evidence of the solitary witness, P.W.6, I find that the learned Additional Sessions Judge was not justified in utilizing it for recording a conviction against the appellants as indicated above. The prosecution has failed miserably to substantiate the charges. The appeal is hereby allowed and the judgement of conviction and order of sentence are hereby set aside. The above named 16 appellants are acquitted. All of them are on bail. They shall stand discharged from their liabilities of their respective bail bonds. Patna High Court Dated the 19th February,2009 NAFR/B.Kr. ( Dharnidhar Jha, J. )