CRIMINAL APPEAL No.235 OF 2002 -------- Against the Judgement and order dated 19.4.2002, passed by Additional Sessions Judge-II, Aurangabad in S.Tr. No. 49 of 1987. -------- 1.DAROGA YADAV 2.RAJESH YADAV Appellants Versus STATE OF BIHAR--------------- ------------------Respondents --------- FOR THE APPELLANTS : SHRI KRISHNA PRASAD SINGH, SENIOR ADVOCATE. Manindra Kishore Singh Bhaskar Shankar Meena Singh FOR THE RESPONDENT : Sushri Shashi Bala Verma, A.P.P. --------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI. JUSTICE BIRENDRA PRASAD VERMA Dharnidhar Jha & B.P. Verma, JJ The two appellants along with acquitted accused Sipahi Yadav and the deceased accused Naresh Yadav were charged variously by the learned trial Judge. These charges included those under sections 302, 307, 324 and 452 of the Penal Code. By the judgment and order of conviction dated 19th April 2003, while acquitting the co-accused Sipahi Yadav, the learned 2nd Additional Sessions Judge, Aurangabad, held the two appellants guilty of committing offences under sections 302 , 307/34, 324 and 452 of the Indian Penal Code and while passing sentences upon the appellants ,the learned trial judge directed - 2 - each of the two appellants to suffer R.I. for life for their conviction under section 302 of the Indian Penal Code and R.I. for seven years for having committed the offence under section 307 of the Penal Code. The learned trial Judge did not inflict any sentence either under section 324 and 452 of the penal Code. The above order of conviction and sentence is being impugned in the present appeal. The short fact as contained in the first information report marked Ext.1/2 is that the informant Rambiranchi Yadav was coming home with his animals. When he reached near the house of one Gobardhan Yadav he found the two appellants along with accused Sipahi Yadav and Naresh Yadav sitting there. A garasa was also lying there. When the informant had come a bit ahead of the house of the said Gobardhan yadav he heard the sound of stomping and looked back to find that accused Sipahi Yadav (since acquitted) was ordering the other accused persons to kill him. Daroga Yadav who was allegedly armed with fasuli and Naresh Yadav armed with garasa , dealt with blows with their respective weapons upon the informant as a result of which he became injured and fell down.The informant got up to run away, in the meantime Bhagmatiya Devi(the deceased)the wife of - 3 - informant came into the lane from her house and fell over the body of the informant so as to save him from being further assaulted by the accused persons. It is alleged that appellant Daroga Yadav gave a fasuli blow on her neck. The informant ran into his house and was followed by the two appellants who again dealt repeated blows to the informant. The informant was attempting to ward off the assault. In the meantime, his mother Devkalia Devi (deceased) and wife of elder brother Maitri Devi (P.W.6) his brother Ramanand Yadav (P.W.1) and his son Awadhesh Yadav (P.W.8) came there. It is alleged that the two appellants had started giving blows by their weapons both to the mother of the informant and his Bhabhi who became injured. The accused persons ran away after having assaulted the informant and others. It is alleged that on account of assault received by the wife of the informant, she fell down in the lane itself and her mother and Bhabhi become injured. The dead body was lying at the lane at the time of lodging of the report. The motive for the commission of the offence was that a dacoity was committed at village Kazichakin which appellant Daroga Yadav was named as one of the culprits. The appellant - 4 - suspected that he had been falsely implicated in that dacoity by Awadhesh yadav(P.W.8), the son of the informant, who was a Dafadar of the circle. The other motive which was alleged by the informant was that some land dispute was going on between the appellants and the informant and the informant had got a decree in that litigation for that particular land and as such on account of these twin reasons the occurrence took place. No police officer has been examined in the case, as such we do not have any evidence as to how the investigation proceeded after the first information report was registered at the statement of P.W.9 Rambiranchi Yadav , but from the record of the trial court what appears to us is that four accused persons named in the first information report were put on trial. During the pendency of the trial accused Naresh yadav died and at the time of rendering the judgement accused Sipahi yadav was acquitted while the two appellants, as indicated at the very out set, were convicted and sentenced in terms as indicated by us. The defence of the appellants appears from the suggestion given to P.W. 9 Ram Biranchi yadav, the informant of the case in paragraph 23 of his evidence, specially the part of the paragraph which runs from page 68 to 69 of the paper book. - 5 - As per the suggesation no occurrence had taken place as was alleged by the informant. The defence suggested that in fact a dacoity had been committed by some dacoits in the night intervening the 14/15th of July 1985 and that dacoity was in fact committed by some of the terrorists in which the properties were plundered and the wife and mother of the informant were killed. It was suggested to P.W.9 that Awadhesh yadav the son of the informant, who was admittedly a Dafadar, on account of his influence upon the police , implicated many persons in false cases of terror activities like the appellant and as such the twins murder were committed in the night as suggested by the defence. The informant was further suggested that a false case was foisted upon the appellant and other accused persons by the informant and his son after bringing the police in their collusion. The prosecution examined in all nine witnesses in support of the charges, out of whom P.W.1 Ramanand Yadav, P.W.6 Maitri Devi and P.W.8 Awadhesh Yadav are named in the first information report . The remaining witnesses are not named in the first information report, but P.W.2 Mahendra yadav has given evidence on some part of the occurrence by stating that he had seen the accused persons running away from the scene of - 6 - occurrence. P.W.3 Krishna Manjari Devi is the daughter of the informant and she gave an eye witness account to the occurrence but she was not named in the first information report. P.W.4 Gulabi Devi is the daughter of P.W.1 Ramanand Yadav and she also appears to have given eye witness account of the occurrence. Likewise, P.W.5 Dev Bansh Yadav is another son of the informant who is not named in the first information report as a witness but he has also supported the charges as an eye witness. P.W.7 Sonwa Devi is the wife of P.W.8 Awadhesh Yadav who is the son of the informant. Sonwa Devi is also named in the first information report and has given eye witness account of the occurrence. P.W.9 Ram Biranchi Yadav as pointed out by us is the informant of the case. The doctor who held the postmortem examination on the two dead bodies was not examined nor was the doctor who examined the injured was produced for his evidence. Likewise, the police officer who had investigated the case was also not produced in the court for his evidence. The defence examined two witnesses. D.W.1 Bharat Singh and D.W.2 Sukhdeni Yadav , who stated about the extremists or naxalites swooping at the house of the informant in - 7 - the fateful night and committed the twin murders. On consideration of the evidence, the impugned judgment was passed in terms as indicated by us. We have heard Shri Krishna Prasad Singh, learned senior counsel appearing for the appellants, who has also taken us through the evidence of witnesses.It was contended by Shri Singh that the witnesses contradicted each other on the most material aspects of the prosecution story.Shri Singh submitted that on perusal of the evidence of P.W.8, who is named in the first information report as an eye witness and who is also the son of the informant,it appears that the claim of the prosecution that the first information report was lodged by P.W.9 is doubtful. It was further contended by drawing our attention towards the evidence of P.W.3 Krishna Manjari Devi in paragraph 8 that the informant was unconscious from the very beginning and he remained so for 2/3 days after the occurrence. It makes it impossible to believe that he had lodged the first information report. The evidence of other witnesses also leads to the similar inference.It was contended that P.W.8 Awadhesh Yadav who has been cited as an eye witness in the first information report appears a hear say witness from his father as may appear from paragraph 14 of the - 8 - evidence of P.W.8. It was contended that some dacoits came to the house of the informant in the night of the occurrence appears admitted by P.W. 7 Sonwa Devi, who happens to be the wife of P.W.8 and daughter-in-law of the informant and this probablises the defence version that the manner of occurrence could be something otherwise. As regards the motive of the occurrence, our attention was drawn to the very evidence of P.W.9 in paragraph 23 and to some other witnesses who have stated that they did not know as to what was the facts of the dacoity case in respect of dacoity allegedly committed at village Kazichak and that they were not aware whether Daroga Yadav was an accused in that case. Sushri Shashibala Verma, appearing for the State has fairly submitted that the non-examination of the doctors and the I.O. appears weakening the prosecution case but some eye account of occurrence coming from other witnesses may not be fit to be brushed aside. It was contended further that there were two deaths and it is admitted that there was some sort of enmity between the parties, but why the police implicated the appellants falsely appears not acceptable for the reason that they had admittedly been identified and named in the first information - 9 - report, especially when the occurrence had occurred at about 6 A.M. on 15.7.1985. The motive as stated in the first information report is two fold. It is alleged that on account of suspecting that P.W.8 Awadhesh yadav, who was admittedly a Dafadar had got appellant Daroga Yadav implicated falsely. The accused persons came together to settle their scores and during that course twin murders were committed and the informant and P.W.6 Maitri Devi were injured. The other story of motive was that the informant had some litigation with the appellants and a case in respect of that dispute had been decreed in favour of the informant as a result of which the accused persons were up in their arms and, as such, committed the offence. We must note that as regards the land dispute and passing of the decree in a civil suit admittedly there could be documentary proof of that part of the prosecution story.Neither the judgment which was passed in favour of the informant nor the decree prepared consequent thereto was brought on record to satisfy the court that the accused persons had lost the litigation and as such could be motivated to do any act, specially,the present act of committing twin murders for that particular reasons. - 10 - When we were perusing the evidence of P.W.9 Ram Biranchi Yadav with the help of the learned counsel for the parties we found that two Exts were brought on record by defence in the form of Exts.A and B.These were orders passed by the Joint Director Consolidation, Gaya and Consolidation Officer, Aurangabad in two different cases. In the litigation which was decided by the Joint Director Consolidation (Ext.A) it is indicated that the litigation was between one Guru Prasad son of Raghunath Prasad on the one hand and Mungeshwar Gope and others on the other hand. As such, we find that the informant was neither a party to that litigation nor any order in favour of him was passed. That particular order was passed by the Joint Director Consolidation against the order dated 18.1.1985 passed by the Consolidation Officer, Madanpur, Aurangabad and it appears that the claim of the father of the accused persons, namely, Niranjan Yadav along with others was upheld and was directed to be recorded on the ground that the applicant in that proceedings before the Consolidation Officer had relinquished his claim on account of the land having been sold to the O.P. by his forefathers.Thus, we do not find that the litigations which were decided by the Consolidation authorities were indeed between the two parties, - 11 - i.e., the informant and the appellant. As regards the other motive that the appellant Daroga Yadav felt aggrieved on account of being falsely implicated in a dacoity case at the instance of P.W.8 Awadhesh yadav, the best evidence in support of that part of the prosecution story would have been the filing of the first information report of that particular case in respect of dacoity which was allegedly committed at the village Kazichak . No such document was placed before the court for its consideration. As regards the oral evidence , P.W.9 in paragraph 23 has stated that he did not know anything about the dacoity which was allegedly committed at village Kazichak and as such he could not say as to who were the accused persons in that dacoity case. If this could be the evidence of P.W.9 indicating his lack of knowledge not only about the facts of the case, but also about the names of the accused who had figured in the first information report or in any part of the investigation, then any court would never act upon such evidence to hold that the prosecution had succeeded in proving the motive. We are alive that in a case of direct evidence, it is needless to allege and prove motive. But, if the prosecution has - 12 - pleaded any fact as motive which had impelled the accused persons to commit the offence then law requires the prosecution to prove that particular fact or motive like any other fact. On discussion of the evidence on motive we are inclined to take a view that the prosecution failed miserably in substantiating the motive which was alleged against the accused persons for committing the offence. This is one of the frailties, in our opinion, which weakens the proof of the charges. Some of the witnesses have given eye witness account either of the full occurrence or part of it. But, the difficulty with us is that witnesses like Mahendra Yadav, (P.W.2), Krishna Manjari (P.W.3), Gulabi Devi (P.W.4), Dev Bansh Yadav (P.W.5) and Sonwa Devi (P.W.7) are not cited as eye witnesses in the first information report. Evidence is sufficiently coming from none less than P.W.8, Awadhesh Yadav in paragraph 11 that some villagers had also assembled at the scene of occurrence. P.W.8 had named two such villagers, like, Chandrika Yadav and Doman Yadav in the FIR as witnesses. However, neither of them has been examined by the prosecution. P.W.2 Mahendra Yadav is a resident of a different village and is related as the fufera brother of the informant. P.W.3 Krishna Manjari Devi is noneelse than the - 13 - daughter of the informant . Likewise, P.W.4 Gulabi Devi is the daughter of Ramanand Yadav (P.W.1) the full brother of the informant. P.W.5 Dev Bansh yadav is the son of the informant and Sonwa Devi P.w.7 is the daughter-in-law of the informant. They could be having motive to come to the witness box in support of the charges because they were supposed to be living under some sort of suspicion that it can be accused persons who could have perpetrated the act of killing the two of their family members. As regards the witness, P.W.8 Awadhesh yadav has admitted in paragraph 14 of his evidence that he met his father at the police station who narrated about each and every fact of the occurrence to him. This evidence is available at page 46 of the paper book. After considering that evidence of P.W.8, we are compelled to hold that P.W.8 could not be an eye witness though he has claimed to be such a witness in his examination in chief. Thus the evidence of P.W.8 does not appear acceptable. As regards the evidence of other witness the evidence of P.W.9 and some other witnesses indicate that after the occurrence was over, other witnesses who have been examined in the trial court like P.W.1 reached there and by that time the accused persons had left the scene of occurrence. Even P.W.9 the - 14 - informant had admitted in his evidence in paragraph 18 that he came out of his house and then found that his wife was lying injured in the lane. The same paragraph indicates that other witnesses who claim themselves to be eye witnesses may not be the eye witnesses. As regards the competence of P.W.9 about lodging the first information report, it has come in the evidence of P.W.3 in paragraph 8 that she had accompanied her father to the police station and had reached there at 8/9 A.M. and that her father was unconscious at that particular time. She has stated that she remained with her father for about one and half months so as to nursing him and her father could regain his conscious after two days. This evidence completely rules out the possibility that the first information report was lodged by P.W.9.This possibility appears further supported by the evidence of P.W.8 in paragraphs 10 and 11. It has been stated by Awadhesh Yadav P.W.8, the son of the informant, that S.I. of Police came to his village on the date of occurrence itself at about 9.30 A.M. and had seen the dead body and had prepared certain documents and thereafter he had questioned P.W.8 on the facts of the case. In paragraph 11 he has clarified the facts more. It has been stated by P.W.8 in paragraph - 15 - 11 that since the S.I. of Police came to his house, he recorded the statement of P.W.8 but he could not find the father of P.W.8 i.e., the informant. P.W.8 has stated that the sub-inspector of police made an inquiry about his father from him and he stated to him that his father had already left for the police station. The S.I. of police remained there for 15/20 minutes and recorded the statements of Sonwa Devi (P.W.7), Gulabi Devi (P.W.4) also Thereafter, he questioned some of the villagers like, Chandrika Yadav and Doman Yadav (both not examined). Paragraph 12 of P.W.8 indicates that the Sub-inspector was informed by the witness as to who could have taken the father of the informant to the police station and by what means he had gone there. Thus, the fact that the first information report was registered at the statement of P.W.9 when he had gone to the police station for that purpose appears doubtful. In fact the evidence of P.W.8 makes it unacceptable to us to record a finding to that effect rather we find the evidence indicating that the police had reached quite some times ahead of the recording of the fardbeyan and had indeed recorded the statement of many persons and had also investigated the case on some of its important aspects, like, holding inquest report and examining witnesses.We as such find the evidence - 16 - suspect as regards the lodging of the report at the police station. The genesis of the occurrence as narrated by the informant was that he was driving his animals home from the fields early in the morning when the accused persons who were on a wait for him, had attacked him. The evidence of P.W6. Maitri Devi, own Bhabhi of the informant, and one of the witnesses to the occurrence indicates in paragraph 6 that the animals were already at home and the lady inmates of the house like P.W.6 and one of the deceased, namely, Bhagmatiya Devi were feeding them after having teethesed them outside a cattle shed. This line of evidence along with the line of evidence of P.W.7 Sonwa Devi the wife of P.W.8 Awadhesh Yadav in paragraph 10 that the dacoits had swooped at the house of the informant during that fateful night, appears assuming importance, in as much as there is no evidence before us as to what was the injury either on the informant or on any of the two dead bodies. We could have got assistance from the evidence of the doctor as regards the manner of occurrence and the assault on P.W.9 and other injured witnesses.We could have also had the occasion of knowing from - 17 - the evidence of the doctor or doctors who had held the postmortem examination on the two dead bodies as to what were the nature of injury caused to them which resulted ultimately in their deaths. Besides, the non- examination of the I.O. also appears to us materially prejudicing the defence because P.W.9 was cross-examined and his attention was drawn to the statements made by him in examination in chief in paragraph 22 of his evidence and he was suggested that he had not made the statement to the police that he was caught by his collar by appellant Daroga Yadav and further that the same appellants dealt blows with fasuli upon him. It was further suggested to P.W.9 that he had not made any statement that appellant Rajesh yadav had given talwar blow to him. Not only that, the evidence of P.W.9 that he had produced his torn blood stained clothes before the police which were seized was also challenged by the defence, suggesting to him that he had not done so. In our considered view those suggestions were very material and the facts brought by cross-examining P.W.9 in paragraph 22 of his evidence required to be proved by the I.O. as they were material facts which were materially - 18 - effecting the central theme of the prosecution case. We are forced to draw adverse inference against the prosecution for withholding important witnesses like the I.O. and the doctors who examined the injured persons or who held the postmortem examination. We are constrained to entertain a view that the prosecution possibly did not produce the I.O. of the case or the medical-men because they would not have supported the material part of the prosecution story and especially the manner of assault. Possibly, the doctor might have given a different reason and time of death. The above are some of the reasons upon which we find the judgment of conviction not sustainable in law. We accordingly, allow the appeal, set aside the conviction of the appellants and sentences passed upon them. We find from the perusal of the records of the present appeal that appellant Daroga Yadav is still in custody on account of not being granted bail by this Court on repeated occasions. The other appellant Rajesh yadav is on bail as appears from order dated 7.8.2002 passed in the present appeal. We direct that appellant Daroga yadav be released forthwith if not wanted in any other case. As regards appellant Rajesh Yadav, he shall stand discharged from the - 19 - liability of his bail bonds. (Dharnidhar Jha, J) (Birendra Prasad Verma, J) Patna High Court, The 8th March 2010 Rahman(N.A.F.R)