CRIMINAL APPEAL (DB) No.164 OF 1988 With CRIMINAL APPEAL (DB) No. 165 OF 1988 ----- Against the judgment of conviction and order of sentence dated 23rd day of March, 1988 passed by Sri Syed Iqbal Ali Imam Raza, Sessions Judge, Bhagalpur in Sessions Case No. 189 of 1984. 1. SK. KALIA, S/O SK. GULAM RASUL 2. SK. GAMA, S/O SK. SALAMAT 3. SK. JAMIL, S/O SK. MAQBOOL All resident of Rangaon Bujurg, P.S. Dhoraiya, District-Bhagalpur. ----------------------------------------------------(Appellants) (in Cr. App. No. 164 of 1988) 1. SK. BASIR, S/O SK. SAHABUDDIN 2. SK. SALIM, S/O SK. SAHABUDDIN 3. SK. BADRA @ BADRUDDIN, S/O SAHABUDDIN All resident of Rangaon Bujurg, P.S. Dhoraiya, District-Bhagalpur. ----------------------------------------------------(Appellants) (in Cr. App. No. 165 of 1988) Versus The State of Bihar ----------------------------------------------------------(Respondents) (in both the appeals) For the Appellants : Mr. Krishna Mohan (Adv.) Mr. Praveen Kumar (Adv.) (in both the appeals) For the State : Mrs. Shashi Bala Verma (Adv.) (in both the appeals) For the Informant : Mr. Binay Kumar Bineet (Adv.) ----------- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ------ S.K. Sharma & D.K. Singh, JJ. Both the appeals have been heard together and are being disposed of by this common judgment because they have arisen out of one judgment. 2. The above named six appellants have 2 2 P2 / 13 challenged their conviction and sentence through the aforesaid two appeals whereby and whereunder the appellants were convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life, whereas the appellants were further convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. Both the sentences were directed to run concurrently. 3. The prosecution case as per the fardbeyan of Hasina Bibi (P.W. 3), recorded by A.S.I. Jitendra Narain Sharma of Dhoraiya Police Station on 11.11.1983 at 01.30 a.m. near Dhoraiya State Dispensary is to the effect that at about 05.30 p.m. on 10.11.1983, the informant’s husband (deceased) namely Sk. Allauddin went to watch his paddy crop. When the deceased was leaving his house, the informant had expressed her willingness to accompany him but she was directed to come later on along with food for the deceased, on which the informant cautioned her husband to be careful, since the enemies are after him. At 07.30 p.m., when the informant reached the field along with food for the deceased, she heard some screaming noise of her husband, coming from the river side, then she 3 3 P3 / 13 proceeded towards that side, where she found that 5-7 persons flashing lights and 10-20 persons assaulting her husband with Pasiyani Hasuwa, Dab and Kachia. Some of the accused persons were identified by the informant, who are Sk. Kalia armed with Pasiyani Hasuwa, Sk. Gama armed with Kachia, Sk. Jamil armed with Hasuwa, Sk. Basir @ Bitu, Sk. Salim, Sk. Badra and Sk. Rasuwa, as they were assaulting the deceased. Thereafter, the informant raising alarm, ran towards the village on which several people came from the village side. Then the informant along with the villagers reached near her husband who was badly injured and his left hand was chopped off and had several bleeding injuries. With the help of the villagers, the informant brought the injured to Dhoraiya Hospital, where the victim succumbed to the injuries. It is further claimed that Sk. Kalia, Sk. Gama and Sk. Jamil had committed rape upon the daughter of the informant five years prior to the occurrence and hence they used to issue threats for retracting from the evidence in the aforesaid case. With regard to other persons, it is claimed by the informant that her husband had deposed against them and due to such enmity, they committed murder of her husband. 4 4 P4 / 13 4. On the aforesaid fardbeyan (Ext. 2), Md. Shamim and Md. Anwal Ali (both not examined) were made attesting witnesses, which led to registration of Dhoraiya P.S. Case No. 57 of 1983 on 11.11.1983 at 01.30 p.m. Though the First Information Report was registered against seven named and four to five unknown accused persons, but it appears that vide Charge Sheet No. 7 of 08.02.1984, all the seven accused persons were charge sheeted, including Sk. Rasua who was declared absconder. Subsequently, six accused persons were put on trial and the case of Sk. Rasua was separated, since he was declared minor under the provisions of Bihar Children Act, 1982. The charges were framed against the six accused persons under Section 148 and Section 302/34 of the Indian Penal Code on 21.05.1983. 5. The prosecution, in order to substantiate the charges examined six witnesses, out of which PW 1 Dr. Jaggarnath Prasad is the Civil Surgeon, who conducted post-mortem over the dead body of the deceased, PW 2 Gulshan Bibi is the daughter of the deceased who claims herself to be an eye witness, PW 3 Haseena Bibi is the informant and claims herself to be wife of the deceased, which is doubted by the defence and has 5 5 P5 / 13 been examined as eye witness, PW 4 Amiruddin has not been cited in the First Information Report as eye witness, but he claimed himself to be an eye witness. PW 5 Md. Mazhar is a formal witness who has come to prove that the deceased has two wives Haseena and Aglina, whereas Haseena was dumb and Shabbir was son of Haseena and PW 6 Jitendra Narain Sharma is the I.O. of the case. 6. P.W.2 is Gulshan Bibi, the daughter of the deceased, who has claimed that she wanted to go to the paddy field to take food for the deceased along with her mother, but since her younger brother woke up, hence, she stayed back for sometime and then she followed her mother and she saw the occurrence from a distance of ten hands from where the informant saw the occurrence. In her evidence, P.W.2 has admitted that most of the accused persons are cousins and they were on litigating terms from before. Moreover, she saw only four persons assaulting the deceased, who were Bashir, Salim, Kalia and Rasua, though, she claims to have seen 6-7 persons in commission of the entire occurrence, hence the credibility of this witness becomes doubtful. From perusal of the fardbeyan it appears that the informant does not say about the 6 6 P6 / 13 presence of this witness at the place of occurrence or at the time when the victim was being taken to the hospital. P.W.2 has got recorded her age as 35 years, hence in that view of the matter it also appears that had she gone at the place of occurrence, she would have at least been made a witness of the First Information Report. This witness in her evidence has specifically stated that after the occurrence and before giving her statement to the police, she had talked to her mother and she conveyed to her mother that she has seen the accused persons assaulting the deceased. In view of the aforesaid evidence, it becomes improbable as to how the mother did not name this witness in the fardbeyan. The other fact which creates doubt about the credibility of this witness is that she claims to have witnessed the occurrence with help of the flash light she was having with herself, whereas the informant, in the fardbeyan, claims to have seen the occurrence in the flash lights being used by the accused persons. Moreover, she has not said anything about the other witnesses to have seen the occurrence. 7. P.W.3 is the informant. It appears that the informant has developed her statement 7 7 P7 / 13 from her version, as was recorded in the fardbeyan, as in the fardbeyan, she does not talk about the presence of the daughter any where near the field or the place of occurrence but, since her daughter has been examined as P.W.2, hence when she came to be examined as P.W.3, she developed her version that when she went to the field, her daughter was also present. However, the evidence of P.W.3 creates doubt about her credibility where she deposed that her husband was killed at 5 p.m., whereas her case in the fardbeyan is that she left her house at 5.30 p.m. and left the place of occurrence between 7.30 p.m. to 1.30 a.m. on 11/12.03.1983, as the case of the informant is that as soon as the victim was taken to the hospital, he succumbed to the injuries. In paragraph-3 of her evidence, she has specifically stated that as soon as the accused persons ran away, her husband died on the spot. In paragraph-17, this witness has stated that she did not run towards the village after seeing the occurrence, which is contrary to what has been stated in the fardbeyan. Her specific case in the fardbeyan is that she ran away towards the village raising alarm and when the villagers came then she reached near the victim. So far as the 8 8 P8 / 13 manner of assault is concerned, to that extent also, this witness has stated in the fardbeyan that seven persons assaulted, whereas in paragraph-2 of her evidence, this witness has stated that she identified only six persons assaulting, whereas P.W.2 has deposed to the effect that only four persons were assaulting. 8. The defence has tried to impeach the credibility of PW 3 by exhibiting the voter list as Ext.A, which suggests that the P.W.3’s name is not incorporated in the voter list as the wife of the deceased. Though, the voter list has not been relied upon by the learned Trial Court, but the prosecution has examined P.W.5 who has specifically stated that the deceased had two wives Haseena and Aglina and that Haseena was dumb was having a son Shabbir whereas Aglina has two daughters Zubaida and Gulshan. Though, P.W.3 has claimed herself to be Haseena but the prosecution witness no.5 has said that Haseena was dumb. Hence, the claim of P.W.3 of being the wife of the deceased, gets clouded by the deposition of prosecution witness no. 5, itself. A suggestion was given to P.W.3 on this point, to the effect that during her statement under Section 161 Code of Criminal Procedure, she 9 9 P9 / 13 claimed Shabbir as her son, but during the trial it became clear that Shabbir is the son of other wife of the deceased, which is contrary to the version of prosecution witness, particularly, the evidence of P.W.5. Hence, the claim of P.W.3 of being the wife of the deceased and an eye witness of the occurrence, appears to be doubtful. 9. Amiruddin, P.W.4, claims that he went to watch the paddy crop along with the deceased, whose land is separated with the land of the deceased with a mud road and he claims to have reached the place of occurrence on hearing the alarm of the deceased and saw the accused persons assaulting the victim. The claim of P.W.4 being an eye witness of the case becomes doubtful, in view of the fardbeyan and the evidence of the P.W.3, as P.W.3 has neither claimed in the fardbeyan, nor in her evidence, that the victim left the house in the company of P.W.4, nor the fardbeyan suggests that he was one of the persons who either saw the occurrence or took the victim to the hospital. Moreover, he has not been made a witness to the fardbeyan. This witness has claimed that he first reached the place of occurrence and then P.W.3 and P.W.2 followed, but P.W.3 has nowhere stated that when she reached 10 10 P10 / 13 near the place of occurrence she found P.W.4 near the place of assault. The evidence of P.W.4 becomes irrelevant, in view of his own evidence in paragraph 4, to the effect that his statement was recorded by Dy.S.P. and he never made any statement before the I.O. Hence on the basis of the evidence of P.W.4, the judgment and order of conviction cannot be sustained. 10. P.W.6 is the I.O. who found blood stains right from the paddy crop field to the river as has been stated in paragraph-4 of his evidence, but it is not the case of the prosecution that the victim was ever dragged, rather it is the specific case of informant that the assault was made near the river, though, P.W.6 has proved the fardbeyan and the formal First Information Report. Moreover, the blood stained mud was not transmitted for the chemical examination, as is apparent from the evidence of the I.O. Moreover, though P.W.6 has stated that he recorded the statement of Shabbir, Gulshan, Basiruddin, Shamim, Anwar Ali, Md. Mazahar, Hasibuddin, but most of the witnesses have not been examined by the prosecution during the trial. Shamim and Md. Anwar Ali are FIR witnesses, but none of them have been examined 11 11 P11 / 13 during the trial nor the fifteen persons, who according to the informant took the victim to the hospital, have been examined, which creates doubt about the true unfolding of the prosecution case by P.W.3. 11. The evidence of PW 1 the Doctor, also creates doubt about the prosecution case. Though he has found altogether ten injuries, out of which eight are incised but the post-mortem examination report reflects semi-digested rice in the stomach, which creates doubt about the contention of the informant that the deceased left the house at 5.00 p.m. and informant carried the food for the deceased at 7.30 p.m. 12. The motive has been alleged in the First Information Report, as well as in the evidence of P.W.3, that the deceased was being pressurized by the accused side for retracting back from the evidence made by the deceased and his family members in a case registered under Section 376 of the Indian Penal Code lodged against three accused persons. But from perusal of the report it appears that there are seven accused persons who were made accused in the present case, whereas out of them only three were accused in the earlier case which was alleged to 12 12 P12 / 13 have been committed five years prior to the present occurrence. Moreover, it appears that the charge in the earlier case was framed under Section 354 of the Indian Penal Code, which ultimately resulted into acquittal and P.W.3 in her evidence has clearly stated that her evidence in the earlier case, was recorded much prior to the present case. Hence, so far as the alleged motive is concerned, it has not been proved by the prosecution. It is a settled principle that in case where direct evidence is available, motive takes a back seat but when direct evidence is lacking then motive plays vital role. 13. Admittedly, both sides are related to each other and there was enmity between them, existing from before. Hence, the chances of false implication, cannot also be ruled out. 14. From the evidence, as discussed above, it is apparent that the prosecution has failed to prove the charges beyond shadow of reasonable doubt. Though it is contended that appellant Sk. Jamil’s age has been recorded in the judgment as 18 years, whereas the date of the occurrence is 10.11.1983, hence he was 14 years on the date of occurrence. But we are not inclined to deliberate on the issue of juvenility 13 13 P13 / 13 of the appellant Sk. Jamil, since, the prosecution has failed to prove the charges against all the appellants. 15. Hence, on the basis of the aforesaid discussions we are unable to sustain the judgment and order of conviction. 16. In the result, the judgment of conviction and sentence dated 23.03.1988 are set aside. The appellants are acquitted of the charges. They are directed to be discharged from the liabilities of their respective bail bonds. Accordingly, both the appeals are allowed. Patna High Court, Patna Dated 30th of August, 2010 kksinha/- N.A.F.R. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.)