CRIMINAL APPEAL No.39 OF 1986 (DB) Against the judgment of conviction and order of sentence dated 15th January, 1986 passed in Sessions Trial No. 119 of 1984 / 5 of 1984 by Shri Bishundeo Dutta Jha, Ist Additional Sessions Judge, Bettiah. ************** 1. LALAN AHIR @ LALAN YADAV SON OF SATELI AHIR RESIDENT OF VILLAGE- CHANDARPUR BHIRARI,P.S.- CHAUTARWA, AT PRESENT AT VILLAGE- BARAGAON, P.S.- BAGAHA, DISTRICT- WEST CHAMPARAN 2. SUGRIB CHOWDHARY @ SUGRIB AHIR SON OF LORIK KURMI, R/O VILLAGE- BARGAON, P.S.- BAGAHA, DISTRICT- WEST CHAMPARAN 3. GHULI CHOWDHARY SON OF SUKAI CHOWDHARY R/O VILLAGE- BARGAON, P.S.- BAGAHA, DISTRICT- WEST CHAMPARAN 4. MANAGER AHIR @ MANAGER YADAV SON OF GANESHI AHIR, R/O VILLAGE- CHOTAKI PATI, P.S.- BAGAHA, DISTRICT- WEST CHAMPARAN 5. SHANKAR CHOWDHARY SON OF BEYAS CHOWDHARY, R/O VILLAGE- KOTAWA,P.S.- BAGAHA, DISTRICT-WEST CHAMPARAN 6. NATH AHIR @ NATH YADAV SON OF RAM AUTAR AHIR, R/O VILLAGE- BARGAON NAWAKA TOLA, P.S.- BAGAHA, DISTRICT- WEST CHAMPARAN …………………………..APPELLANTS Versus THE STATE OF BIHAR …………………………RESPONDENT ***************** For the Appellants :- Mr. Sahawan Singh, Advocate Mr. Hari Shankar Shukla, Advocate For the State :- Mr. Ashwini Kumar Sinha, APP P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma & Gopal Prasad, JJ. The above named appellants have preferred this appeal against the judgment of conviction and order of sentence dated 15th January, 1986 passed in Sessions Trial No. 119 of 1984 / 5 of 1984 by the learned Ist Additional Sessions Judge, Bettiah whereby and whereunder the appellants have been convicted under Sections 302/34 and 201 of the Indian Penal Code and they have been sentenced to undergo life imprisonment under Sections 302/34 of the Indian Penal Code and rigorous imprisonment for five years under Section 201 of 2 the Indian Penal Code. 2. The prosecution case relates to an occurrence which allegedly took place in the night of 12th December, 1983. According to the fardbeyan, on that date the informant and others have gone to river Gandak for cremating mother of Narmadeshwar Mishra of village Chotarwa. While the informant Sahdeo Mahto, his son Rekha Mhato, Narmadeshwar Mishra, Chedi Ahir, Rama Ahir, Janki Nonia, Boran Ahir, Koshil Ahir, Lachuman Kohar, Kamta Hajam, Jamuna Yadav, Rama Thakur, Asharfi Thakur and Mahendra Mahto were returning after cremation and when they reached near the house of one Shivmangal Singh on the pitch road at 10.00 P.M. in the night then 20-25 persons having lathi, came and surrounded them and surrounded the tyre cart which was carrying the informant and his persons. They started assaulting indiscriminately to the informant’s son Rekha Mahto by means of lathi. The persons on the tyre cart tried to rescue the informant’s son but they failed. In course of assault Biran Ahir, Koshil Ahir, Jamuna Yadav, Rama Tahkuar and Ram Ahir received some injury by the assault of the lathi. The miscreants removed Rekha Mahto from the cart on the ground and thereafter he was assaulted by means of lathi leading to his death. The dead body of Rekha Mahto was taken away towards the west. The informant has identified five persons out of mob of 22-25 persons. They were Lalan Ahir, Sugrib Ahir, Guli Chaudahry, Manager Ahir and 3 Shankar Chaudhary who were having lathi in their hands and they were participating in the occurrence. The motive of the occurrence was that the informant’s villager Asharfi Thakur and Jamuna Yadav were having land dispute with Tarkeshwar Singh of village Badgaon and in that dispute the informant’s son was helping Asharfi Thakur and Jamuna Yadav which was not being liked. The accused persons being the servants of Tarkeshwar Singh have committed the murder. 3. The aforesaid fardbeyan resulted into registration of Bagaha P.S. Case No. 136 of 1983. The case was investigated into and after investigation Chargesheet was submitted. After completing para phernalia the case was committed to the court of Sessions where the charges were framed and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 4. The defence has denied the prosecution allegation of assault saying that no such occurrence has ever taken place. The victim namely, the deceased Rekha Mahto was not dead rather he is alive and is active member of the notorious gang of Nema Ahir. 5. In order to prove the charge, the prosecution has examined 13 witnesses. PWs 1 and 6 are own brothers and PW 2 is their nephew. PW 3 is Narmadeshwar Mishra. The rest witnesses, to some extent have supported the prosecution case are PWs1, 2, 3 and 6. 4 6. Learned counsel appearing on behalf of the appellants have submitted that at the outset the motive of the occurrence was not proved and the trial court in paragraph 5 of his judgment has agreed with the submission of the learned counsel appearing on behalf of the accused that the prosecution has failed to prove the motive. It has been argued that when the sole reason of killing and motive has not been proved then the entire occurrence becomes doubtful. It has also been submitted that the case is based on circumstantial evidence and the genesis of the murder was not proved then the entire prosecution case against the appellants has become doubtful and the benefit of doubt should have been given to the accused/appellants but the trial court has acted on conjectures and surmises and in utter disregard of the principle has ordered for conviction. 7. In the aforesaid backgrounds the entire facts are being discussed. We have to see whether the prosecution was able to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 8. It has come in evidence that the dead body was taken away by the accused but the consistent case of the defence is that, in fact, the victim was never killed rather he is intact. It has also been argued that the prosecution case is that the blood was found at the place of occurrence and it was seized by the investigating officer. The investigating officer has 5 been examined and he has stated that blood was seized but he has also stated that the report of the Forensic Science Laboratory was not received. It is apparent from the facts available on the record that it was not proved by the prosecution as to whether the blood was of human or of any one else and whether it was even seized or not. If the dead body was not found and the prosecution case was that the blood was found then it must have been proved by the prosecution that at least it was human blood and the blood was of the person who was allegedly killed. The prosecution has failed to discharge its onus here. 9. The relied upon witnesses have not been able to explain as to why they could not named one of the convicts, namely, Nath Ahir though he is also the resident of the same locality and same place and FIR was lodged in the afternoon at 2.00 P.M. of 13.12.1983 with regard to the occurrence of the night at 10.00 P.M. meaning thereby that there was a gap of 14 hours between the time of occurrence and time of fardbeyan and no witness has been able to explain as to why name of one of the convicts Nath Ahir was not mentioned in the FIR. 10. PW 6 should not have been relied upon because when he was examined then he was asked to identify the accused persons. That witness has identified Manager calling him as Lallan. Apparently it was a case of wrong identification. The occurrence is of the night and there is no source of light 6 given in the fardbyean. At later stage the witnesses have introduced that the identification was in the torch light. 11. No doubt the torch has not been produced because under the circumstances the torch was not seized but the evidence has to be scrutinized considering the background that it was a dark night and in that regard identification of one of the most relied upon witness PW 6 has cast a grave doubt on the prosecution version with regard to culpability of the appellants in this case. A wrong identification creates enough doubt on which it can be said that the source of identification was not definitely proved beyond all reasonable doubts. 12. On the other hand two witnesses whose house are situated just adjacent to the place of occurrence have been examined on behalf of the defence and they have stated that nothing was happened on the date and time of occurrence near their house, namely, at the place of occurrence. These witnesses were cross-examined by the prosecution but they have consistently supported that on the date and time of occurrence, in fact, there was no assault because they must have known the occurrence had it taken place near their houses. 13. Out of 13 witnesses examined on behalf of the prosecution, PW 5 Kamta Thakur, PW 7 Koshil Yadav and PW 11 Chhedi Yadav were tendered. PWs 4, 8, 9, 10 and 12 have been turned hostile and they have not supported any part of the 7 allegation. 14. The prosecution has relied upon the testimonies of PWs 1, 2, 3 and 6. PW 6 has identified a wrong person in the dock so his evidence cannot be relied upon and it was not even discarded by the trial court. Rest witnesses are PWs 1, 2 and 3 have also not given specific role to any of the appellants. PW 3 in his evidence has stated that at the time of assault he was sitting about 20 laggies away from the place of occurrence when the deceased was being assaulted by the accused persons and when he came at the place of occurrence he saw the accused persons have already been left the place with the dead body of the deceased. The identification of the accused in the dark night at a distance of 20 laggies is almost impossible and so his evidence should not have been relied upon because this witness has come to the place of occurrence after the dead body was taken away by the accused persons. Hence he cannot be relied upon. 15. PW 1 and PW 2 are interested witnesses and the conviction has been passed mainly on the evidences of theses witnesses and their evidences are also not consistent with regard to manner of assault rather the conviction was passed upon the testimony of the interested witnesses which cannot be allowed to sustain. The enmity of the deceased was with regard to PW 1 and PW 2 but they have not been assaulted rather a person has been assaulted who has no direct enmity. 8 16. Considering the loopholes in the prosecution version regarding identification of a wrong person by one of the relied upon witness, failure of the prosecution to prove the motive, non-recovery of the dead body of the deceased, non- examination of the blood which was allegedly seized at the place of occurrence and means of identification not available, we are of the view that the prosecution has not been able to prove the charges against all the appellants beyond all reasonable doubts. Hence the case becomes doubtful and benefit of doubt goes in favour of the appellants. 17. In the result, the judgment of conviction and order of sentence as stated above is set aside and this appeal is allowed. The appellants are acquitted from the charges. They are also discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna Dated 19th April, 2010 avin/N.A.F.R.