IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.312 of 1989 -------- Against the judgment of conviction and order of sentence dated 15th of July of 1989 passed by the 3rd Additional Sessions Judge, Bhagalpur, in Sessions Trial No.89 of 1983. 1. Sukhdeo Sah, son of Late Kutto Sah. 2. Om Prakash Sah. 3. Nand Kishore Sah. 4. Mahabir Sah. 5. Ashok Sah alias Ashok Kr. Sah. Sons of Sukhdeo Sah. All residents of Aliganj, P.S. Mojahidpur, District-Bhagalpur. ……………………………………………………………………………Appellants. Versus The State of Bihar……………………………………………………...Respondent. ========================================================== Appearance : For the Appellants : M/s. Krishna Mohan and Praveen Kumar, Advocates. For the State : Mr. Shivesh Chandra Mishra, A.P.P. CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ------ ORAL JUDGMENT ------- S.K. Sharma & R.K. Mishra, JJ. The appellants, Sukhdeo Sah, Om Prakash Sah, Nand Kishore Sah , Mahabir Sah and Ashok Sah alias Ashok Kumar Sah, have preferred this appeal against the judgment of conviction and order of sentence dated 15th of July, 1989 passed by the 3rd Additional Sessions Judge, Bhagalpur, in Sessions Trial No.89 of 1983, whereby the 3rd 2 Additional Sessions Judge, Bhagalpur, convicted all the five appellants under Section 302 read with Section 149 of the Indian penal Code and sentenced them to undergo rigorous imprisonment for life. 2. The prosecution case, as contained in the fardbeyan (Ext.2) of Laxman Sah, P.W.2, given on 2.3.1981 at 8.30 P.M., is that on the alleged date at about 8.00 P.M., the informant was in his house situated at Mohalla-Aliganj Gulabibagh, P.S. Mojahidpur, District- Bhagalpur. At that very time, the informant heard the sound of hulla coming from the direction of the house of accused Sukhdeo Sah. Thereafter, the informant and his sister, P.W.1, Sukhatia Devi, rushed towards the house of Sukhdeo Sah and saw his Bhagina Sitaram Sah lying dead on the Rasta situated in front of the house of Sukhdeo Sah. Sukhdeo Sah, Mahabir Sah, Ashok Sah, Nand Kishore Sah and Om Prakash Sah were seen escaping from there. Several people of the locality gathered there and saw the accused persons fleeing away. The marks of injury on the neck, chest, abdomen, back and leg of Sitaram Sah were found. The informant at that time was holding a lantern in his hand. The informant knew that soon before the occurrence in the evening Sitaram Sah had quarreled with the wife of the accused Sukhdeo Sah and on account of that the accused persons had taken away Sitaram Sah in their house and committed his murder and after committing his murder, they threw the dead body of the deceased on the Rasta situated in front of their house. The fardbeyan (Ext.2) was resulted in the formal F.I.R vide Mojahidpur P.S. Case No.24 dated 2.3.1981 under Sections 148, 149 and 302 of the Indian Penal Code against Sukhdeo Sah, Mahabir Sah, Ashok Sah, Nand Kishore Sah and Om Prakash Sah. The 3 inquest report (Ext.3) containing the signature of Sahdeo Sah, P.W.8 and Hari Prasad Sah (not examined) was prepared. The dead body of the deceased was sent for post-mortem examination and after post-mortem examination, the post-mortem examination report (Ext.5) was received. The case was investigated by the police and after investigation the chargesheet was submitted and after cognizance the case was committed to the court of sessions for trial where the charges were explained to the accused persons who pleaded their innocence and, accordingly, the trial proceeded. 3. The defence of the accused- appellants was of false implication on account of previous enmity. Their further defence is that Sitaram Sah was a life convict in at least two sessions cases and there is also possibility that he might have been killed by the strangers. 4. The prosecution in order to prove its case examined P.W.1, Sukhatia Devi, P.W.2, Laxman Sah, P.W.3, Sadho Sah, P.W.4, Ram Prit Sah, P.W.5, Mahendra Sah, P.W.6, Sikandar Sah, P.W.7 , Jagdish Prasad Sah, P.W.8, Sahdeo Sah, P.W.9, Mahendra Keshari, P.W.10, Arvind Kumar Singh, the Investigating Officer of this case and P.W.11, Dr. H.I. Ansari, who conducted the post-mortem examination of the deceased. 5. The defence in support of its case has produced two documents which are the certified copy of the judgment of Sessions Trial No.90 of 1967 and 120 of 1969 to show that the deceased and P.W.5, Mahendra Sah, were tried together in both the aforesaid sessions cases and both of them were sentenced to life imprisonment in these cases. 6. The trial court considered the evidence of the prosecution 4 witnesses and came to the conclusion that the prosecution has been able to prove the charges against all the accused persons. 7. P.W.1 is Sukhatia Devi. She is the Mausi of the deceased, Sitaram Sah. She has deposed that on the alleged date after hearing the noise coming out from the house of Sukhdeo Sah at 7.00 P.M., she went there and found Sitaram Sah dead in the Angan of the accused, Sukhdeo Sah. She saw the accused, Nand Kishore Sah, Sukhdeo Sah and Om Prakash Sah and others escaping from there. At that time all the accused persons were having Garasa, dagger and lathi in their hands. In course of cross examination, she has given a complete go bye to her evidence and she has changed the place of occurrence and has stated that she saw the dead body of the deceased Sitaram Sah in front of the house of Sukhdeo Sah. There were inconsistencies in her evidence given on examination in chief and cross examination as in course of examination in chief she has stated that she saw the dead body of the deceased in the Angan of the accused Sukhdeo Sah and in her cross examination she has stated that she saw the dead body of the deceased on the way. Further, in course of her cross examination, she has stated that as it was a dark night, so she could not see as to who had gone inside the Angan. Therefore, the evidence of this witness cannot be relied upon because of the inconsistence in her evidence either with regard to the place of occurrence or source of identification. In paragraph-5 of her cross examination, P.W.1 has stated that she had seen 1-2 persons fleeing away. She has further stated that she saw one or two persons running away from distance of 10 to 12 cubits. This is the major inconsistency in her evidence. 5 The trial court has considered the evidence of P.W.1 and has come to the opinion that on the point of identification of the accused persons the evidence of P.W.1 is of no help to the prosecution case. We are in full agreement with the submissions of the learned counsel for the appellants that on the point of identification of the accused, the evidence of P.W.1 is of no help to the prosecution case. Therefore, the evidence of P.W.1 cannot be relied upon and it is discarded. 8. P.W.3, Sadho Sah, P.W.4., Ram Prit Sah, P.W.6, Sikandar Sah and P.W.8, Sahdeo Sah, have not supported even one part of the allegation and they have turned hostile. They have denied the suggestion of the prosecution that they have seen any part of the occurrence. Therefore, their evidence is of no help to the prosecution case. P.W.7, Jagdish Prasad Sah, is a tendered witness and has not stated anything about the occurrence. P.W.9, Mahendra Keshari, is the seizure list witness but he has not supported the seizure. The remaining witnesses are P.W.2, Laxman Sah, the informant, P.W.5, Mahendra Sah, P.W.10, Arvind Kumar Singh, the Investigating Officer of the case and P.W.11, Dr. H.I. Ansari, who conducted the post-mortem examination of the deceased Sitaram Sah. 9. P.W.5, Mahendra Sah, in his evidence has stated that on 1.3.1981 at about 8.00 P.M. he was near the shop of Hari Sah. At that very time he heard some sound for help. On this, he went near the house of Sukhdeo Sah and found Sitaram Sah badly injured. He has also stated that he saw the accused, Sukhdeo Sah, Mahabir Sah, Om Prakash Sah, Ashok Sah and Nand Kishore Sah, throwing Sitaram Sah out of their 6 house after dragging and badly injuring him. This witness has stated that thereafter all the accused persons fled away in the eastern direction through lane. This witness has denied the suggestion that he was ever sent to jail and has ever friendship with Sitaram Sah. He has denied the specific suggestion that in the year 1979 he was accused in the cases of murder alongwith Sitaram Sah and further he denied the suggestion that in few cases he has been convicted under Section 302 of the Indian Penal Code alongwith Sitaram Sah. However, the judgments of the trial court goes to show that he alongwith Sitaram Sah were convicted earlier and they were sentenced to undergo rigorous imprisonment for life. Therefore, the conduct of P.W.5 as such makes his evidence untrustworthy. However, this would not amount to discard the evidence of this witness but total evidence has to be considered. P.W.5 in paragraph-6 of his evidence has stated that he had gone from the place of occurrence after the accused fled away. This sentence of the evidence of this witness is enough to hold that his evidence cannot be relied upon. 10. The sole witness of the occurrence is P.W.2, Laxman Sah, the informant of the case. In his evidence, he has stated that on the alleged date at about 8.00 P.M. he heard cry of the killing of Sitaram Sah. Then he went alongwith P.W.1, Sukhatia Devi there through lane. At that time, he was carrying a lantern and he saw the dead body of the deceased Sitaram Sah at the door of Sukhdeo Sah. He noticed the accused persons escaping from the place of occurrence and at the time of occurrence they were armed with Dabia and Bhala. In his fardberyan, this witness has given a different version of the prosecution case. In his fardbeyan, he has stated that he has seen the accused escaping but has 7 not attributed anything regarding weapon carrying in hands. Therefore, this version that he has seen the accused persons fleeing away with arms is an addition. The case was investigated in such a manner that there is no further statement of P.W.2 in the record. On this background his evidence has no leg to stand. According to P.W.2, when he went to the place of occurrence, there were 15-16 persons. He could not identify any villagers amongst 15-16 persons who were present there but there is no suggestion as to how he identified the accused persons escaping. Regarding holding of weapons by the accused persons, he could not identify any of the accused persons holding which type of weapons in their hands because it was a dark night. When some question was put to him as to whether any accused persons had tried to conceal his identification then this witness has stated that due to dark night he could not identify. When the source of identification is doubted then responsibility casts upon the prosecution to establish the case regarding the source of identification. In the present case the source of identification is stated to be lantern which was being carried out by the P.W.2 in the night. It was the sole source of identification but when this question was put to him, this witness has stated that he did not remember that either he was having a lantern or not and has shown the lantern to the Investigating Officer. He has also stated that he had not given the lantern to the Investigating Officer. P.W.10, Arvind Kumar Singh, the Investigating Officer of the case, has stated that he saw the dragging mark from the Angan of the accused persons upto the place on the Rasta where he found the dead body of the deceased but he has not mentioned of this fact in the case 8 diary. In paragraph-14 of his evidence, this witness has stated that P.W.2, Laxman Sah, had stated to him that he had gone at the place of occurrence holding a lantern in his hand but he had not shown the lantern to him and he had not mentioned this fact in the case diary. 11. In the present case, the source of identification has not been cleared and it is also not clear that as to how the accused persons were identified when the evidence of the witnesses is consistent to the extent that there was a dark night. Considering the fact that there is no further statement of the informant in the case diary, the source of identification was not even noted in the case diary and there is different version of the informant, P.W.2, in his evidence and fardbeyan, either with regard to holding the weapons by the accused persons or the place of recovery of the dead body of the deceased, the testimony of the informant, P.W.2 cannot be believed with regard to the participation of the accused persons. 12. P.W.11 is Dr. H.I. Ansari, who has conducted the post- mortem examination of the deceased. He found the following injuries on the person of the deceased. (i) Punctured wound on left side front of chest 1” X 1/2” X chest cavity deep near 3rd rib 1” medial to left nipple. (ii) Stab wound 1” X 1/2” X chest cavity deep on 4th left coastal cartilage 1” from mid line. (iii) Stab wound 1” X 1/2” X abdomen deep in right hypochardrium. (iv) Stab wound 3/4” X 1/2” X chest deep in left side in anterior auxiliary line near 9th rib. (v) Punctured wound 1/2” X 1/4” X muscle deep on left side of chest 2” below left nipple. (vi) Punctured wounds in left side back of chest 1” X 1/2” X 9 chest deep. Another 3/4” X 1/2” X chest deep in left scapular region. (vii) One punctured wound on right upper arm 1” X 1/2” X muscle deep. (viii) Two punctured wounds on right upper arm 1” X 1/2” X muscle deep. (ix) One punctured wound on lower part of right thigh 3/4” X 1/2” X muscle deep. (x) One lacerated wound on right mandible 2” X 1” X bone deep. In the opinion of the doctor, the cause of death of the deceased was haemorrhage and shock as a result of the injuries to vital organs like heart, lung and liver. In the opinion of the doctor, the sharp cutting weapons were used for causing the injuries and the time elapsed since death was within 12 to 14 hours. He has stated that these injuries were sufficient to cause death in ordinary course of nature. He proved the post-mortem report (Ext.5). His further evidence is that dagger, dabia and bhala might have been used for causing the said injuries. He has also opined that the injury no.(x) might have been caused by Lorhi. 13. The evidence of the prosecution witnesses is that all the accused persons have thrown the deceased out of their house after dragging him but the evidence of the doctor does not show that the deceased was dragged from some distance and there was any such type of injuruy. This also creates a great doubt regarding the authenticity of the prosecution case. The evidence of the doctor is only to the extent that the death of the deceased Sitaram Sah was homicidal. In the present case, the trial court has relied upon the evidence of the witnesses but some of them have not supported the case of the prosecution and only 10 P.W.1, P.W.2 and P.W.5 have supported the case of the prosecution but from their evidence the manner of occurrence and source of identification could not be proved. Non support of the prosecution case by any inquest witness and seizure witness further creates the serious doubt with regard to the authenticity of the prosecution case specially in view of the fact that the F.I.R. was registered on 2.3.1981 which was received in the Court on 5.3.1981. Section 157 of the Code of Criminal Procedure mandates that the First Information Report must be sent to the court without delay. The purpose of this Section is to see that the court receive the earliest version of the occurrence and the Magistrate be made aware of an occurrence without delay and when the matter is suppressed for longer time then all the apprehension arises. No doubt, the delay itself could not fatal the prosecution case but if the delay is not explained the same creates a great doubt regarding the manner of occurrence. The inquest report had been prepared at 9.00 P.M. on 2.3.1981 which bears the P.S. case number while on basis of the fardbeyan of the informant, P.W.2, F.I.R. was registered on 2.3.1981 at 11.15 P.M. Therefore, it is very difficult to explain as to why in the inquest report the P.S. case number was mentioned. The post-mortem report was prepared later on but the same does not bear the P.S. case number. The facts coupled with the delayed receipt of the F.I.R. in the court and also the fact that the informant was not examined in a proper perspective creates the serious doubt with regard to the authenticity of the prosecution case. The prosecution has altered its case at all counts during the examination of the witnesses in course of trial. Therefore, the prosecution has failed to prove the case beyond all reasonable doubts against the accused persons. 11 14. In the result, the judgment of conviction and order of sentence passed against the appellants are set aside and the appeal is allowed. The appellants are acquitted of the charges and they are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J) (Rajendra Kumar Mishra, J) Patna High Court, Patna. Dated: The 15th of July, 2011. Pradeep Srivastava/N.A.F.R.