IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.20 of 1989 Against the order of conviction and sentence dated 20.12.1988 passed by the Sessions Judge, Katihar in Sessions Case No.89 of 1988 arising out of G.R. No.1206 of 1986. ==================================================== 1. Abdul Hakim, Son of Amir Hussain. 2. Sheikh Sultan, Son of Md. Yasin. Both residents of Village-Tinpania, P.S. Korha, District Katihar. .... .... Appellants. VERSUS The State of Bihar .... .... Respondent. ==================================================== Appearance : For the Appellant/s : Mr. Sandip Patil, Amicus Curiae For the Respondent : Ms. Shashi Bala Verma, A.P.P. ==================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) ****** The two appellants have filed this appeal against the order of conviction and sentence dated 20th December, 1988 passed by Sessions Judge, Katihar in Sessions Trial No.89 of 1988. Appellant no.1, Abdul Hakim has been convicted under three different counts, under Section-302 for causing the death of Dasrath Choudhary, under Section-307 attempting to murder Kailu Choudhary, the informant and under Section-458 of the Indian Penal Code (IPC) for breaking into the house of Choudhary brothers in the night. He has been sentenced to life imprisonment, imprisonment for 7 years and imprisonment for 7 years respectively. Patna High Court CR. APP (DB) No.20 of 1989 dt.29-11-2011 - 2 - Appellant no.2, Sheikh Sultan has been convicted under Sections-302/34, 307/34 and 458 of the IPC for the same occurrence and sentenced to undergo imprisonment for life, for three years and seven years respectively. Sentences have been ordered to run concurrently. This case was running in our list for considerable period but as there was no representation from the appellants’ side, we requested Mr. Sandip Patil, learned Advocate, who was present in the Court, to assist us as amicus curiae. He agreed. Heard learned amicus curiae for the appellants and learned A.P.P. for the State. On behalf of appellants, it is submitted that it is, in fact, a case of no evidence. The appellants have been convicted on solitary evidence of the informant which itself is highly improbable. The prosecution case is based upon the fardbeyan of the informant, Kailu Choudhary (P.W.3) as recorded by Diwakar Singh (P.W.4), the Sub-Inspector of Police of Korha Police Station in the district of Katihar. The fardbeyan is recorded at 7 am on 08.07.1986. The informant alleges that at about 9-10 pm on 07.07.1986 while he and other family members had retired, the appellants forcefully entered into his hut, they first assaulted him and attempted to kill him with knife. Hearing this commotion, his brother Dasrath Choudhary came to save him. Upon this, Abdul Hakim, appellant no.1 gave him a dagger blow on the chest. While this was going on, the informant managed to escape and returned with villagers and found his brother dead. While escaping, he had seen several people standing outside. It is further alleged that the miscreants carried away box containing some papers with regard to some litigation. The Patna High Court CR. APP (DB) No.20 of 1989 dt.29-11-2011 - 3 - motive ascribed for this incident was that about a week ago, the appellants had demanded toddy and there being insufficiency of toddy, they had been enraged and had threatened the informant. Upon this fardbeyan being recorded, the case was registered and investigation taken up. Upon completion of investigation, chargesheet was submitted against the appellants. The learned Chief Judicial Magistrate having then taken cognizance of the offence under Sections-302,307,458 of the IPC committed the case to the Court of Sessions whereupon charges were framed by the Sessions Judge under three heads, as noted above and trial commenced. Appellants pleaded not guilty. In order to establish the case, the prosecution has, in all, examined four witnesses. P.W.1 is Samsad Ahmad, the Medical Officer who prepared the injury report with regard to the injury on the informant. P.W.2 is Indra Prasad Bhagat who is the Civil Assistant Surgeon who conducted the postmortem examination of the deceased, Dasrath Choudhary. P.W.3 is the informant, Kailu Choudhary and P.W.4 is Diwakar Singh, the Sub-Inspector of Police who investigated the case and filed the chargesheet. The exhibits are the fardbeyan, the injury report, the inquest report and the postmortem report. Upon trial, the learned Sessions Judge convicted both the appellants, as noticed above and sentenced them. From the evidence, as recorded, it would thus be seen that in fact there is only one eye witness who has come to the Court and that is the informant. If we refer to the first information report, we would find that when the occurrence took place, the informant and his brother along with their families were in the hut. No other family member, though examined by the police as admitted by the Investigating Officer, has been Patna High Court CR. APP (DB) No.20 of 1989 dt.29-11-2011 - 4 - named as a witness much less examined. This itself raises a doubt because even if one accepts the explanation of the I.O. that they had not disclosed the names of the assailants, it goes to show that the names of the appellants was not disclosed to them, the family members, by the informant even up to the time when they were questioned by the police in course of investigation. This is one aspect of the matter. The other is that in the F.I.R. itself, it is disclosed that the informant returned with villagers and found his brother dead. The villagers are named in the F.I.R. but they are not even cited as witnesses in the chargesheet much less examined in the Court. Then, we find that there are two witnesses who have signed the fardbeyan being Sakaldeep Choudhary and Ayodhi Choudhary. Again there is no explanation why they have not been named in the chargesheet as witness much less examined or produced in the Court. The next document in the case is the inquest report. Again there are two witnesses in the inquest report being Santosh Kumar Mukherjee and Sibu Das. Again neither of them has been shown as chargesheet witness nor have they been examined or produced in course of trial. Now, we come back to the first information report. We find that the first information report though registered on 08.07.1986 is received in the Court for the first time on 15.07.1986, though sent through Special Messenger. Thus, there is a delay of about one week in the first information report reaching the Court, which is totally unexplained. These facts create serious doubt upon the prosecution case. Now, we may refer to the deposition of the informant himself who has been examined as P.W.3. He has clearly admitted that it was a dark night and the visibility in the hut at that time was very poor. Patna High Court CR. APP (DB) No.20 of 1989 dt.29-11-2011 - 5 - He has admitted that the appellants entered into the hut after breaking the thatch door which hit the ‘Dibri’ (local lamp) which fell down and got extinguished. This clearly suggests that the moment the accused persons entered into the hut, there was total darkness. Informant further admits that the miscreants had concealed their face but their eyes were visible. He admits that he had identified the appellants in such a situation by assumptions that it would be the two persons with whom he had quarrel a week back with regard to sale of toddy. This, in our view, clearly creates a doubt about the correctness of identification. This, coupled with the fact that he did not disclose the names even later on to his family members, or to anyone else shows that till the time the family members were questioned in course of investigation, names were not known. Names have been subsequently stated in the first information report which, as noted above, reaches the Court after a week without any explanation for the inordinate delay. Thus, we find that apart from the doubtful statement of the informant there is no other witness or corroborative material to implicate the appellants. Incidentally, we may also notice that though in the first information report, the informant had clearly stated that the miscreants carried away a box containing some important litigation papers which would otherwise have shown that someone interested with those litigation would have done the work, in his examination in Court, he has given total go by to the aforesaid allegation. There is no whisper thereof. Thus, in our view, it is not safe to uphold the conviction of the appellants on the sole testimony of the informant in the facts and circumstances stated above. We, accordingly, set aside the judgment of Patna High Court CR. APP (DB) No.20 of 1989 dt.29-11-2011 - 6 - conviction and sentence and allow the appeal and discharge the appellants of their liability of bail bonds. We appreciate the assistance received from learned counsel appearing as amicus curiae, namely, Sandip Patil and accordingly direct the Patna High Court Legal Services Authority to pay a sum of Rs.1500/- for assisting us in the matter. (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.) Patna High Court Dated 29th November, 2011 Trivedi/NAFR