CRIMINAL APPEAL (DB) No.91 OF 1989 WITH CRIMINAL APPEAL (DB) No. 131 OF 1989 ----- Against the judgment of conviction and order of sentences dated 24th of January, 1989 passed by 6th Additional Sessions Judge, Siwan in Sessions Trial No. 241 of 1986. ----- 1. BIRENDRA SONAR 2. BRAHMADEO SONAR, BOTH SONS OF BAIJNATH SONAR, 3. BAIJNATH SONAR, SON OF JAGINA SONAR, RESIDENT OF VILLAGE MAIRWAN DHAM, POLICE STATION MAIRWAN, DISTRICT SIWAN. -----------------(Appellants) (in Cr. App. No. 91 of 1989) 1. DHARMDEO SONAR, SON OF SRI BAIJNATH SONAR, RESIDENT OF VILLAGE MAIRWAN DHAM, POLICE STATION-MAIRWAN, DISTRICT- SIWAN. --------------------(Appellant) (in Cr. App. No. 131 of 1989) Versus THE STATE OF BIHAR -----------------(Respondents) (in both the appeals) ----- For the Appellants : Mr. Ashok Kumar Mishra No. 2 Advocate Mr. Varun Kumar Advocate Mrs. Prathibha Kumari Advocate Mrs. Geeta Kumari Advocate (in both the appeals) For the State : Ms. Shashi Bala Verma (APP) (in both the appeals) P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ----- S.K. Sharma & Akhilesh Chandra, JJ. Criminal Appeal No. 91 (DB) of 1989 on behalf of Birendra Sonar, Brahmadeo Sonar and Baijnath Sonar and Criminal Appeal No. 131 (DB) of 1989 on behalf of Dharmdeo Sonar, brother of Appellant No.1 of Criminal Appeal No. 91 (DB) of 1989 have been filed against the judgment of 2 conviction and sentence passed by the learned 6th Additional Sessions Judge, Siwan on 24.01.1989 in Sessions Trial No. 241 of 1986 whereby the appellants were convicted under Section 302/34 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for life. 2. Before proceeding further it will be apt to note down the salient features of the prosecution case which resulted on the basis of fardbeyan of Shankar Sah (P.W.4). The fardbeyan was given in the police station and it was recorded by Ramashray Ram (P.W.6). P.W.4 in his fardbeyan has stated that on 1st January, 1985 he was present at his cycle shop with his full brother Ramdeo Sah (deceased of the case). At about 6.30 p.m. on that the informant’s brother Ramdeo Sah went to the liquor shop of Shankar Chaudhary. He returned at 8.00 p.m. but was followed by accused Birendra Sonar, Brahmadeo Sonar and Dharmdeo Sonar and their father Baijnath Sonar. All the four accused persons complained saying that there was no dues against them. The informant’s brother replied that Dharmdeo Sonar has taken tyre etc. worth Rs. 3000/- and that money was not being 3 returned. Immediately, thereafter, all the four named accused persons started abusing and assaulting by fists and slaps. At that time Dharmdeo Sonar was carrying one iron rod. He struck from the iron rod upon the head of the informant’s brother whereas Birendra Sonar, Brahmadeo Sonar and Baijnath Sonar assaulted indiscriminately Ramdeo Sah by means of Lathis which were they carrying at the time of occurrence. The informant named Birendra Sonar, Brahmadeo Sonar, Dharmdeo Sonar and Baijnath Sonar. Rajendra Prasad (P.W.1), Jagdish Kanu and Sheikh Munna came and witnessed the occurrence. The informant’s brother died due to the assault. The fardbeyan resulted in Mairwa P.S. Case No. 1 of 1985 dated 01.01.1985 under Section 302/34 of the Indian Penal Code. After investigation, the charge sheet was submitted, cognizance was taken and the case was committed to the court of Sessions where charges were explained to the accused persons who pleaded innocence so the trial proceeded. 3. In order to prove the case, the prosecution examined six witnesses. They were First Information Report named witnesses Rajendra Prasad (P.W.1), Jagdish Prasad (P.W.2) 4 and Sheikh Munna (P.W.3). The informant himself was examined as P.W.4. Other witnesses were official witnesses. Dr. R.K. Choubey (P.W.5) has conducted the post-mortem examination on the dead body of the Ramdeo Sah whereas Ramashray Sah (P.W.6) - Investigating Officer after investigation has submitted the charge sheet. 4. P.W.5 has deposed that on 02.01.1985 while he was posted as Civil Assistant Surgeon at Siwan Sadar Hospital then at about 12.10 p.m. he performed the post-mortem examination on the dead body of Ramdeo Sah and has found the following ante-mortem injuries:- (I) One lacerated wound 1/2”x1/2”x muscle deep below the left eye. (II)One lacerated wound 2”x1/2” x resulting into the fracture of the occipital bone. (III)One lacerated wound 1”x1/2” x scalp deep above the Injury No. (II). On opening of scalp the membrance were found torn and congested. The bloods and blood clot were also found on the brain substance. Time elapsed since death according to the doctor was found within 18 hours. All the 5 ante-mortem injuries of the deceased were caused by hard and blunt substances. The post- mortem report is on the record marked as Ext.2. 5. Rajendra Prasad (P.W.1) has stated that on 1st January, 1985 at about 8.00 p.m. he was at his residence. According to him, Ramdeo Sah (deceased of the case) and Shankar Sah (P.W.4) were his tenants. Both were having shops under his tenancy. After this witness heard some noise, then he came out from the house, crossed the road and heard that Ramdeo Sah has been killed. He has not seen any person committing any assault. Therefore, the evidence of P.W.1 is of no use to the prosecution. He is a named witness of the First Information Report but he has not supported the prosecution case and he was ultimately declared hostile. 6. Similarly, P.W.2 and P.W.3 merely stated that after hearing some noise they went near the place of occurrence and saw Ramdeo Sah died. These two witnesses are also named witnesses of the First Information Report but they have not supported any part of allegation against any of the appellants. These two witnesses were also declared hostile therefore, P.Ws.2 and 3 were of no use for the 6 prosecution. 7. Now, remains the evidence of P.W.4. According to him, at about 8.00 p.m. on the 1st January, 1985 he was at his Cycle Shop. According to him, accused Dharmdeo Sonar has taken some spare parts of the cycle from Ramdeo Sah. The informant’s brother was demanding that amount from him. Dharmdeo Sonar was also having a cycle repairing shop. The demand by Ramdeo Sah resulted in altercation and quarrel. Meanwhile, Brahmadeo Sonar, Birendra Sonar and Baijnath Sonar extricate Ramdeo Sah from the shop and they dragged him up to the road. These appellants were being actively associated by their father namely Baijnath Sonar. All the accused persons indiscriminately assaulted Ramdeo Sah by fists and slaps. Dharmdeo Sonar struck iron rod blow upon the head of Ramdeo Sah who fell down, thereafter, rest accused again assaulted by fists and slaps and sticks. Due to those combined assaults Ramdeo Sah succumbed. According to him, it was a night and at that time electric bulb was giving light and in that light the informant has identified the appellants. He further stated that it was raining cats and dogs in the night. According 7 to him, the occurrence was witnessed by other persons namely P.Ws. 1, 2 and 3. His fardbeyan has resulted into First Information Report (Ext.1). 8. Thus, this informant remains the sole eye witness of the occurrence, therefore, his evidence has to be scrutinized in view of the fact that other witnesses who are named in the First Information Report as eye witness have not supported and only informant has supported his case. With this angle his evidence has to be scrutinized. It is well settled that testimony of single witness must remain intact. On the basis of uncorroborated and fractured version of one person, no order of conviction can be upheld. The investigating officer has received the information while he was at police station. The information was given to him by informant (P.W.4). This witness set out for the place of occurrence at 10.00 p.m. and arrived at the place of occurrence at 11.00 p.m. According to the deposition of this witness the place of occurrence is a pitch road. At that place the informant was having his “Cycle Repairing Shop”. No trace of blood was found because it has rained earlier. The informant 8 has seized one iron rod, one sawal (which is not mentioned either in the FIR or in deposition of any of the witnesses) and one Lathi. The seizure list (Ext.6) was prepared after seizing those articles. After investigation, the investigating officer has submitted charge sheet. 9. Learned Counsel for the appellant has submitted that there is no corroboration of the version of P.W.4 and so on this basis the trial court was unjustified in ordering the order of conviction. It has also been submitted and the FIR named witnesses have not supported the informant because in fact no such occurrence has occurred and when they have not supported the occurrence then, a grave doubt is created that as to whether the occurrence as alleged has taken place or not. Death of Ramdeo Sah is not in dispute. But the manner of occurrence and implication of the appellants is under challenge. 10. The specific case of the sole witness P.W.4 is that the victim was caught by the accused persons and he was dragged up to the road. This fact is not mentioned in the initial version which was recorded as FIR but 9 FIR is not encyclopedia of the entire prosecution case and so some other versions may also come. But other versions must confirm the basics of the FIR when new set of fact is introduced then this is improvement of the prosecution case and it creates doubt as to whether the offence as alleged has taken place at all or not. According to the FIR, the assault was on the shop. According to the FIR, no occurrence of assault has occurred on the road. It appears that when blood was not found on the shop then this improvement was made that the victim was dragged to the road and then he was assaulted and blood was washed out due to rain. This improvement gives different twist of the occurrence. It appears that this improvement of the prosecution case is completely beyond the initial version of the occurrence. Even if, the subsequent version of dragging is considered then the post-mortem report indicates that the deceased had only three ante-mortem injuries and none of those injuries were such which could be said to have been affected on account of dragging. No doubt, the mark of dragging of land may vanish after rain but mark of dragging will remain present 10 on the dead body but non finding of any such mark by the doctor on the body of the deceased creates a grave doubt regarding the prosecution version as to whether the victim was ever dragged. 11. The case is based upon sole testimony of the informant. Other witnesses those who are named as eye witnesses of the case have not at all supported any part of the allegation. The informant, himself, has improved his case at later stages and those improvements were not in tune of his earlier version which has been noted in the FIR. Those improvements have destroyed the prosecution case instead of improving it. The occurrence as alleged by the informant become doubtful in view of the circumstances noted above. Once a doubt is created regarding the manner of occurrence then the entire case become suspicious and role of the accused persons cannot be said to have been proved in the case when the manner itself has been suspected. 12. Under the aforesaid circumstances, we are of the opinion that the prosecution has not been able to prove the case beyond shadow of reasonable doubt. Once a doubt is created 11 then the prosecution case fails and accused persons are entitled to give benefit of doubt. In the result, the judgment of conviction and order of sentence is set aside. Both the appeals are allowed. The appellants of both the appeals are acquitted and they are discharged from the liability of their respective bail bonds. Patna High Court, Patna Dated The 13th of December, 2010 kksinha/- N.A.F.R. (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)