CRIMINAL APPEAL No.49 OF 2003 ******* Against the Judgment and order passed by 3rd Additional Sessions Judge, Jamui, dated 17th December, 2002, in sessions Trial no. 737 of 1999. ******* 1. DURGA YADAV, SON OF LATE TIKAN YADAV, 2. NEPALI YADAV SON OF LATE TIKAN YADAV, 3. BUDDHAN YADAV SON OF DURGA YADAV, ALL RESIDENTS OF VILLAGE PALAO, P.S. JHAJHA, DISTRICT-JAMUI. ------Appellants Versus STATE OF BIHAR & ORS--------Respondents ******* FOR THE APPELLANTS : S/SHRI YOGESH CHANDRA VERMA & ANWAR KARIM FOR THE STATE : SUSHRI SHASHI BALA VERMA ******* P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON'BLE SRI JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. The three appellants have preferred this appeal against the order of their conviction for the offences under Section 302/149, 148 and 380/149 of the Indian Penal Code and sentenced to undergo respectively rigorous imprisonment for life, rigorous imprisonment for two years and rigorous imprisonment for three years awarded on 16th December, 2002 by the learned 2 3rd Additional Sessions Judge, Jamui in Sessions Trial no. 737 of 1999 arising out of Jhajha P.S. Case no. 8 of 1999. 2. The appellants, besides one Jadu Yadav, faced the trial and said Jaddu Yadav was also convicted and sentenced along with the appellants for the same offences as they have been convicted besides he was further convicted under Section 302 of the Indian Penal Code and 27 of the Arms Act but he died after preferring Cr.Appeal no. 13of 2003 which was to be heard along with the instant appeal but due to his death the appeal preferred by him was ordered to be abated. 3. The prosecution case, as stated in Exhibit-1/1, i.e., Fardbayan of Sikander Yadav (P.W.5) recorded on 20th January, 1999 at 10.30 A.M. at his house in village Patwa by Sub-Inspector of Police, Krishna Kumar (P.W.8), the Investigating Officer, is that in the previous night that is 19th January, 1999 at about 11.00 P.M. three persons scaled into his house through roof. On query by his mother and himself, they stated as “Tumhara Baap”. They caught hold of him in his room then in the light of electric bulb he could identify them as Mohan Yadav (absconding), Durga Yadav and Nepali Yadav respectively. Appellants no. 1 and 2. Simultaneously, main door 3 of the house was being pushed to be opened. Persons getting hold of the informant, proceeded to open the door. Taking advantage of the situation, the informant went upon the roof from where he could see that from the door, Jaddu Yadav (deceased appellant in Cr.Appeal no.13 of 2003) and Budhan Yadav, appellant no.3, along with few more entered into the house, started searching him and his father, Kesho Yadav (P.W.1) who got himself concealed behind bundle of straw. Other inmates of the house, that is, mother and wife of the informant, started requesting them to take ornaments and other articles but not to kill any one. Meanwhile, they caught hold of younger brother of the informant, Dinesh Yadav, and were telling to kill him. Then informant jumped from the roof outside and ran towards neighbouring village requested the people to come in rescue but they avoided. On rturn, he found that miscreants had killed his brother and escaped. Deceased Dinesh Yadav was shot at his buttock. Wife and mother of the informant narrated him the subsequent happenings such as inspite of their request, Durga Yadav, appellant no. 1, stated that “Dhan Sampatti Lena Nahi Aye Hain Yahan, Par Har Bahane Aye Hain” and all shot dead the deceased aged 22 years. 4 Motive behind the occurrence, as stated, is previous litigation with respect to piece of land and has also stated that in the previous evening deceased was getting wheat irrigated, mother of appellant no.1, Durga Yadav, reacted sharply and uttered that she will not permit to utilize the wheat. The miscreants further took away one attaché containing different papers relating to land and bank deposit etc. It is also stated that in the previous evening while he, being hand pump watcher, was returning from Jhajha with his associates, accused Yaddu Yadav, Nepali Yadav and Buddhan Yadav along with others called him but he avoided and went to his house. On the basis of above it is stated that the miscreants caught hold of him to kill and when he escaped his brother was shot dead. 4. On consideration of the evidence of the witnesses examined in support of the prosecution version, besides documentary evidence, the trial Court ordered conviction and sentence of the appellants. 5. The defence of the appellants is that they have falsely been implicated due to previous enmity. There is none to see the occurrence wherein deceased was killed. The witnesses examined have contradicted each other on all vital issues, even 5 on the point of identification and manner of the occurrence. In defense three witnesses had also been examined. 6. From the plain reading of the Fardbayan, Exhibit-1/1, it appears that informant had seen earlier part of the occurrence and identified the persons catching hold of him only in the light of electric bulb in his house. He any how got himself out of their clutches. Went upon the roof, some times thereafter jumped out. Latter part of occurrence, that is, killing of the deceased, he could not be able to see rather whatever information he has received it is through his mother and wife. Further, in Exhibit-1/1, fardbayan the informant has completely silent about any weapon holding by the intruders. 7. Out of the eight witnesses examined by the prosecution, first five non-official witnesses are of same family, three of whom, P.W.1, Kesho Yadav, P.W.2, Omiya Devi, and P.W.4, Sugia Devi respectively father, wife and mother of the informant, came as eye witnesses of the occurrence. P.W.3, Ayodhi Yadav, is full brother of P.W.1 but he is a hearsay witness deriving information through P.W.4 and P.W.5 is Sikandar Yadav, informant, himself. As stated, he also had not seen main part of the occurrence. What he has come to know is 6 through his wife and mother respectively, P.Ws 2 and 4. 8. The informant, as a witness, while narrating prosecution case as P.W.5, has also not said about any weapon in the hands of the miscreants. In paragraph 4 he states that on return from neighbouring village he found his brother, Dinesh, shot dead and his mother (P.W.4) informed that “JADDU YADAV NE PISTOIL SE GOLI MARA.”. Here he omits deriving the information through his wife (P.W.2). The information received by him through his mother is only that Jaddu Yadav (deceased) shot his brother dead. No other information was given to him by his mother on latter part of occurrence. In paragraph 8 he has a bit developed the prosecution version on the point of irrigating the wheat field, he introduced himself also as a person irrigating the field. In paragraphs 12 to 15 of the cross-examination he has stated about the genealogy of the family and continued civil litigations. It emerges that appellant and informant both came from common stock and members of different branches. The dispute between them centers round with respect to the properties of two branches, one side claims being issueless and another introduces some else. On the point of means of identification he is 7 consistent that in the light of electric bulb he could be able to identify the miscreants. According to him electric connection and the house stands in his name but this fact that there is any electric connection in the house sanctioned by the Authorities his father, as P.W.1, did not support him. Detail shall be discussed at the time of discussing evidence of P.W.1. 9. In paragraph 22 the witness is specific that there was two bundles of straw taking help of which his father got him concealed. This story appears improbable that inside a house where there is sufficient light coming through electric bulb father of the informant could easily get himself concealed. In subsequent paragraph his attention was drawn towards some of his statements made earlier under section 161 of the Code of Criminal Procedure, which he denied. 10. P.W.3, Ayodhi Yadav, is another person deriving information regarding manner of occurrence through P.W.4 after arriving at the place of occurrence half an hour after hearing sound of firing and alarm of dacoity. On arrival he found his nephew Dinesh Yadav shot dead and his sister in law, P.W.4, informed him that “YADU YADAV GOLI MARA HAI. NEPALI YADAV, DURGA YADAV, MOHAN YADAV, 8 BUDHAN YADAV, SABHI LOG BHATIJA KO DABE HUE THE.” She said nothing more. Here this witness has introduced the three appellants as the persons getting hold of the deceased at the time he was shot dead. In cross-examination he has given details of litigation and genealogy and topography etc. Nothing more is relevant. 11. The two persons P.W3 and P.W.5 claims to derive knowledge about vital part of the occurrence through P.W.4, a living person and there is also vital contradictions in such information given by P.W.4 to both these persons, P.W.3 and P.W.5. P.W.3 introduced the appellants also. Their statements may be admissible only when either P.W.4 states that she stated such thing to these two persons or at least she states what they claim to get information through her. 12. In these backgrounds, statement of P.W.4 becomes very much relevant for consideration. In examination in chief this witness Sugia Devi has not stated that she informed the informant or her brother in law, P.W.3 about any part of occurrence and in paragraph 3 about the manner of occurrence relating to killing to solitary deceased Dinesh Yadav. She had said “MERA BETA DINESH KO JADDU TATHA BUDHAN 9 PAKER LIYA. JADDU PISTOL CHALA DIYA, NABHI KE BAYEN TARAF LAGA. GOLI LAGNE SE WAH MAR GAYA.” So, taking into consideration the above part of the statement of P.W.4 who is claimed to be solitary source of information about a vital part of the occurrence for P.Ws 4 and 5 varies and makes the statement of P.Ws 3 and 5 on this point inadmissible. Maximum allegation attributed against deceased accused Jaddu Yadav can be said to be admissible evidence. But, so far three appellants are concerned, there is nothing against them in these statements. 13. This witness, P.W.4, was tested through cross- examination and in paragraph 6 she says that altogether nine persons committed dacoity in her house. They did not conceal their faces by any means. She could identify five of them and in paragraph 3 she has already said that identification was done by her in the light of electric bulb. She further admits to previous litigation. In paragraph 9 she says that at the time of entrance of the miscreants there was scuffle between P.W.5, deceased, herself, at one hand, and miscreants, on the other. She could not say whether any Mar-peet was done or not. In paragraph 10 she says that after the occurrence his son, Sikandar Yadav, P.W.5, 10 the informant, and Dewar, P.W.3, Ayodhi Yadav, arrived but she is silent about stating them anything. Her attention was drawn towards her statement as to holding of the deceased by Jaddu Yadav and Budhan Yadav though she admits that she made such statements under Section 161 of the Code of Criminal Procedure but the Investigating Officer, P.W.8, has denied in his statement of making such statement. 14. Another eye-witness of the occurrence is P.W.2, wife of the informant. She, in paragraph 2, states that her husband (P.W.5) was caught hold of inside the courtyard but he escaped. She could identify the three intruders coming through roof as Mohan (absconding) Durga and Nepali, the two appellants and after opening of the door by one and Durga five to seven persons entered in the rooms. She could identify Jaddu (dead) and Budhan (appellant) in the light of electric bulb and in paragraph 3 she states that Mohan, Durga and Nepali caught hold of her brother in law, Dinesh Yadav (deceased) but at the instance of Durga Yadav, Jaddu Yadav shot him dead. In paragraph 4 she says that apart Jaddu, Budhan had also a pistol and others had gun as kept by police personnel. In examination in chief itself this eye-witness has given a different story about 11 the killing of sole deceased Dinesh Yadav. She also does not say that she stated about the occurrence to any one including her husband (P.W.5). In cross-examination she was not in a position to state about the details of investigation but she stated regarding the parties being agnates to each other. Her attention was drawn towards her earlier statements made before Police and it appears that her entire examination in chief is contrary to what she had stated under Section 161 of the Code of Criminal Procedure. Specific attention was drawn by learned counsel for the appellant towards her statement in paragraph 13 wherein she has denied stating before Police that “EK AGAYAT YUVAK DARHI WALA APNE HATH MEIN LIYE PISTOL SE MERE DEWAR PER GOLI CHALA DIYA.” But the Investigating Officer, P.W.8, states that this was the statement made by this witness before him. 15. Now comes another eye witness, P.W.1, before whom his youngest son was killed. He stated in paragraph 6, after stating the entry of miscreants and escape of informant from there clutches, that he get himself concealed behind bundle of straw from where he identified the miscreants in the light of electric bulb. Jaddu Yadav and Budhan Yadav had pistol and 12 other miscreants had gun in their hands. He further says that when the informant fled away the miscreants caught hold of his another son and at the dictates of Durga Yadav, Yaddu Yadav shot him dead. Thereafter, his dead body was brought from Verandah to outer bungalow. In cross-examination he admits the detailed genealogy stating about the litigation claims and counter claims. He further speaks in cross-examination, paragraph 22, that at the time of entry of the miscreants inside the house he also raised alarm. This statement makes it difficult to believe that the miscreants who entered into the house, well armed with deadly weapons with intention to kill all the family members, may spare the head of the family. This witness who could be able to conceal him behind bundle of straw. This witness was not asked about the details of straw etc., but P.W.5, the informant, in paragraph 22, has stated that it was only one or two tied bundle, adjacent to each other, if there was sufficient light due to electric bulb and this witness was able to see the entire occurrence from behind these two bundles of straw, even after raising alarm showing his presence inside the house the miscreants, who were well armed, could spare him untouched specially when there was none to resist, causes grave doubt on the point of presence of this 13 witness. This witness (P.W.1) on the point of electric connection in the house, contradicted to his son (P.W.5) in paragraph 20 has said that though application had been submitted and money has also been deposited but no connection was provided. 16. The Investigating Officer (P.W.8), at the time of inspection of place of occurrence, did not find any electric bulb or bundle of straw kept inside the house, used as a place of hiding himself. The Investigating Officer has also not found any mark of entrance from outside the house up to the roof neither there was any ladder or stair. 17 In the above background it is crystal clear that the sole means of identification of the miscreants is light coming through electric bulb but, as stated above, the witnesses are inconsistent to each other on this point. The Investigating Officer has not found any such bulb or verified connection. Thus, the very identification of the accused persons by the witnesses at the place of occurrence becomes doubtful. 18. It is the case of the prosecution that deceased was shot dead inside the house at Verandah which is, as per P.W.5 in paragraph 18, is 18 feet in length and 4 feet wide and if 14 the witnesses are believed, deceased was caught hold by the miscreants including Jaddu who shot him dead. In such a case, firing must have been done from a close range. Then presence of charring and tattooing around the wound is a must, as per opinion of the Doctor, P.W.6, also in paragraph 6. But, the doctor, who conducted autopsy of the deceased, found the following injuries: “(1) Rigor mortis was present on all the limbs, no obvious injury was found on the skull, in chest except heart chamber was empty. (2) One circular lacerated wound over right buttock mid size of the wound 1/3 “ x 1/3” deep to muscles and bone with blood and blood clot around the wound. Margin of wound they are inverted and ragged (this is wound of entrance). (3) One circular wound around mid of engenal ligament point over left side of lower abdomen with margin everted ragged and deep to the cavity (this is wound of exit).” But, he did not find tattooing or charring and he further opined in paragraphs 7 and 10 that injury sustained by the deceased might have been caused by heavy weapon like rifle from long range but this doctor, in paragraph 9, has left giving size of wound of exit which could have been a guiding factor to decide exact nature of weapon. 19. The nature of injury and opinion of the Doctor, if considered together with statement of P.W.2, wife of the 15 informant, who, in her statement under Section 161 of the Code of Criminal Procedure, though denied in her statement during prior that deceased was shot at by one unknown person and the intruders were armed with big guns also causes another doubt in the manner of occurrence as stated by Prosecution. 20. The defence, by producing four witnesses and by cross-examining the prosecution witnesses, has tried to establish that there was an alarm of dacoity in the house of the informant and the appellants, being agnates and neighbours, arrived at the house in rescue, in response of the alarm but subsequently they have falsely been implicated in this case due to previous enmity. The defence story regarding alarm of dacoity stands corroborated by P.W.3, Ayodhi Yadav, who in his very examination in chief, paragraph 1, has stated that he heard hulla of dacoity and sound of firing and such materials, available on record, further darken the cloud against the prosecution verson. 21. The learned court below has, after considering the evidence, passed order of conviction and sentence of the appellants but it appears that the vital discrepancy, as stated above, and pointed out by the learned counsel for the appellants, 16 in course of argument, escaped sight of the trial court and such discrepancies are sufficient to darken the cloud against the prosecution version and the prosecution has, in our considered view, not been able to remove them. So, finding of the court below regarding conviction and sentence of the appellants is not sustainable and they are entitled for benefit of doubt. 22. In the result, the appeal is allowed, the conviction and sentence passed against the appellants are set aside. The three appellants, who deserve the benefit of doubt, are hereby ordered to be acquitted. The appellants, Durga Yadav, Nepali Yadav and Budhan Yadav, who are on bail by order of this Court dated 11th February, 2003, are discharged from the liabilities of their bail bonds. Sd/ (Akhilesh Chandra, J.) Dharnidhar Jha, J. I agree. Sd/- (Dharnidhar Jha, J.) Patna High Court, The 20th April, 2010. AAhmad/(NAFR) 17