CRIMINAL APPEAL No.195 OF 2004 ***** Against the judgment of conviction and order of sentence dated 09.02.2004 and 10.02.2004 respectively passed by Sri Akhileshwar Prasad, 7th Additional Sessions Judge, Saran at Chapra in Session Trial No. 379 of 2000. SAPPU SINGH @ DEORAJ SINGH, S/O-U.S.P. SINGH @ SHEOJI SINGH, RESIDENT OF MOHALLA-DAULATGANJ, P.S.-BHAGWAN BAZAR, DISTT.- SARAN AT CHAPRA. -----------------------------------(Appellant) Versus THE STATE OF BIHAR ---------------------------------------------(Respondents) For the Appellant : Mr. Rana Pratap Singh (Sr. Advocate) : Mr. Sumant Singh (Advocate) : Mr. Aruni Singh (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 J.J. The sole appellant has preferred this appeal against the judgment of conviction and order of sentence dated 09.02.2004 and 10.02.2004 respectively passed by the learned 7th Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 379 of 2000 whereby and where under the appellant has been convicted under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. 2 2. The prosecution case relates to an occurrence of 01.09.1999 at 5 P.M. The information was given by the informant Badri Mahto (P.W. 9) that 1 1/2 months prior to the occurrence Sappu Singh @ Deoraj Singh came to the house of informant by motorcycle and persuaded the informant’s son who ply his tempo. It was an agreed upon that the informant’s son Pawan Kumar Mahto will ply the tempo on daily basis. The informant’s son Pawan Kumar Mahto used to ply the tempo and every evening he was parking it at the house of the appellant after clearing the account. As usual the informant’s son Pawan Kumar Mahto went to the house of the appellant in the evening. At that time the informant and his another son Naresh Kumar Mahto (P.W. 8) were in the market. When they returned at about 6.30 P.M. then they came to know that Sappu Singh @ Deoraj Singh (appellant) has stabbed the informant’s son to death, whose dead body was lying on the road near the house of Raju 3 Singh. The informant and his son went there and found the dead body which was soaked in blood. The persons of the neighbourhood told that the appellant along with his two associates have brutally assaulted the informant’s son by means of sharp cutting instrument which has caused severe injury to the informant’s son and that has led to his death. The motive of the occurrence was that Sappu Singh @ Deoraj Singh (appellant) was sitting on the cot and when the informant’s son went to give account then he was abused. The abuse was protested and on account of that the murder was committed. 3. The First Information Report was registered against the sole appellant and two unknown under Section 302/34 of the Indian Penal Code. The case was investigated into and after investigation, charge sheet was submitted. Cognizance was taken, the case was committed to the court of Sessions where charges were explained to the accused to 4 which he pleaded not guilty and claimed to be tried. 4. The defence of the appellant was of false implication. The prosecution in order to prove the case has examined 13 witnesses. They are Jyoti Kumari (P.W.1), Arti Kumari (P.W. 2), Parma Nand Prasad (P.W. 3), Kedar Mahto (P.W. 4), Urmila Devi (P.W. 5), Manoj Kumar Chauhan (P.W. 6), Bhim Mahto (P.W. 7), Naresh Kumar Mahto (P.W. 8), Badri Mahto (P.W. 9) – the informant and father of the deceased, Babita (P.W. 10), Dr. Ram Ekbal Prasad (P.W. 11) who has conducted the post-mortem examination upon the body of the deceased, Virendra Prasad Shrivastav (P.W. 12) – the first Investigating Officer and Sanjay Kumar (P.W. 13) – the second Investigating Officer. The defence has examined Aditya Kumar (D.W. 1) and Lalan Chaudhary (D.W. 2). The prosecution has exhibited signature of Bhim Mahto on inquest report as Ext. 1, signature of informant on fardbeyan as Ext. 2, 5 Post-mortem examination report as Ext. 3, Fardbeyan as Ext. 4, Inquest report as Ext. 5, Seizure List of the motor cycle as Ext. 6. The defence has proved paragraph-62 and 63 of the case diary which were marked as Exts. A and A/1. 5. Out of thirteen prosecution witnesses PWs. 1, 2, 3, 5 and 10 have not supported and part of the prosecution allegation and they were declared hostile by the prosecution. P.W. 8 is brother of the deceased and another son of the informant P.W. 9. P.W. 9 is father of the deceased. 6. P.W.1 and 2 have stated that they have not seen the occurrence and they have been declared hostile. P.W. 3, 5 and 10 have stated that they knew nothing about the occurrence so they have been declared hostile. The eye witness, relied upon by the prosecution is P.W. 4 and P.W. 6. P.W. 7 is the inquest witness. 7. P.W.4 in his evidence has stated that two years earlier when he reached near the house of 6 Sappu Singh (appellant) where he saw that Sappu Singh came with dagger and he gave a dagger blow on the neck of Pawan Kumar who fell down and died. According to him many persons have assembled there. He has stated that Pawan Kumar was plying the tempo of appellant Sappu Singh on hire and on account of this he had some hot altercation with the appellant and so he was killed. P.W. 4 went with P.W.6 Manoj Kumar Chauhan and both were returning after cremating of a girl. In paragraph- 6 of his evidence he has stated that while he was in Guzri Bazar he heard that Pawan Kumar has been killed. The evidence of this witness is not consistent because at one place he is stating that he has seen that Sappu Singh has stabbed but in his cross-examination he has stated that he has not seen the occurrence rather he heard about murder of Pawan Kumar while he was in Guzri Bazar. Therefore, this witness is not a witness of the occurrence. He is a hearsay witness and much 7 reliance cannot be given upon his testimony. 8. P.W. 6 in his examination-in-chief has stated that Pawan Kumar was killed by the appellant but in his cross-examination in paragraph-7 has stated that he reached near the house of Rajo Singh then he found that Pawan lying there. He was dead and, thereafter, information was given to the informant’s family. In cross-examination, this witness has not supported his version wherein he has tried to make himself a witness of the occurrence. P.W. 7 is an inquest witness, P.W. 8 has not seen the occurrence and he has heard the information of killing of his brother while he was in the market. The most important witness of the case is P.W.9 who has stated that when he was in the market then he came to know that his son has been murdered. Thereafter, this witness came to know through wife of Parmanand Prasad (P.W. 3) and his daughters P.W.1 and P.W. 2 that the appellant has killed the informant’s son. Therefore, the 8 evidence of the informant is to the extent that he came to know about the occurrence through P.Ws. 1, 2 and 5. Jyoti Kumari (P.W. 1), Arti Kumari (P.W. 2) and Urmila Devi (P.W. 5) have categorically stated that they have not seen any part of the occurrence, therefore, the witness informing the informant have not supported that they have seen the occurrence and as such the information derived by the informant through P.W. 1, 2 and 3 cannot be held to be reliable and it cannot be reliable. 9. P.W. 11 has conducted the post-mortem examination and has found the following ante- mortem injuries: (i) Incised wound on the left side of chin 2”x1/4”x1/4”. (ii) Incised wound above left eye brow 1”x1/4”x1/6”. (iii)Incised wound left side of neck 1” above the clavide medial and 2”x1”x1” cutting muscles and 9 soft tissues. (iv) Incised wound on left round angle 2”x1/4”x3”. The death on account of use of stabbing instrument has been established by the doctor but for proving the charge that the offence was committed by the accused the prosecution must prove that it is the accused/appellant alone who has committed the offence. P.Ws. 4 & 6 have been examined by the I.O. on 27.11.1999. The occurrence is of 01.09.1999 and these two witnesses have stated before the I.O. that they were hearsay witnesses. Those witnesses who were hearsay while they were examined under Section 161 of the Code of Criminal Procedure have become eye witnesses before the trial court but in course of their examination they have given up and have stated that they came to know about the occurrence later on and reliance cannot be given upon the deposition of P.Ws. 4 and 6. Other witnesses P.Ws. 10 8 & 9 are not the eye witness of the occurrence. They came to know about the occurrence later on. P.Ws. 1, 2 and 5 have not supported allegation and they were declared hostile. Therefore, in the present case, the prosecution has not been able to bring any witness of the occurrence and none have supported the allegation and charge regarding killing of the deceased by the appellant. 10. In view of the aforesaid discussion, we are of the view that the prosecution has not been able to prove the charge against the appellant at all. 11. In view of the aforesaid discussion the judgment and conviction of sentence is set aside and the appeal is allowed. The appellant is directed to be released forthwith, if not wanted in any other case. Patna High Court, Patna Dated 12th May, 2010 kksinha/- N.A.F.R. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.)