CRIMINAL APPEAL(DB) No.467 OF 1988 ********** (Against the judgment and order of conviction dated 17th of August, 1988 passed by 3rd Additional Sessions Judge, Gopalganj in Sessions Trial No. 504 of 1981/ 31 of 1986). *********** 1. Rosan Chaudhary, son of Bideshi Chaudhary 2. Nand Kumar Chaudhary, son of Bideshi Chaudhary 3. Pratap Chaudhary, son of Nand Kumar Chaudhary 4. Suresh Chaudhary, son of Nand Kumar Chaudhary 5. Deenanath Chaudhary, son of Sheo Bachan Chaudhary 6. Janardan Chaudhary, son of Rosan Chaudhary 7. Sohili Devi, daughter of Nand Kumar Chaudhary 8. Matia Devi, wife of Nand Kumar Chaudhary All residents of village Arna P.S. Uchkagaon, District-Gopalganj. --------------(Appellants) Versus The State of Bihar ---------------(Respondent) ********** For the Appellants : Mr. Hare Krishna Kumar, Adv. For the State : Miss Shashi Bala Verma, APP 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. The eight appellants have challenged the judgment of conviction and order of sentence dated 17th of August, 1988 passed by learned 3rd Additional Sessions Judge, Gopalganj in Sessions Trial No. 504 of 1981/ 31 of 1986, whereby and whereunder the appellants have been convicted under Sections 302/149 2 I.P.C. and sentenced to undergo rigorous imprisonment for life. Appellant Pratap Chaudhary has been acquitted for the charges under Section 302 I.P.C. and all the eight appellants have also been acquitted for the charges under Section 307/149 I.P.C. For appreciating the grounds of appeal, it is necessary to trace the prosecution case in brief which got initiated on the fardbeyan of Chandrama Chaudhary(P.W. 10) recorded by Rana Ragho Ram Singh(P.W. 9), A.S.I. Gopalganj P.S., on 25.05.1982 at 9:00 P.M., to the effect that Sohili Devi (appellant No. 7) daughter of Nand Kumar Chaudhary(appellant No. 2) had illicit relation with few people, over which there was hot exchange between the parties and with regard to Sohili Devi’s illicit relations, some letters were in possession of the deceased Thakur Chaudhary. On 25.05.1982 at 5:00 P.M., the informant along with his family members was sitting at Bathan(cattle house). In the meantime, Rosan Chaudhary(appellant No. 1), Nand Kumar Chaudhary (appellant No. 2), Pratap Chaudhary(appellant No. 3), Suresh Chaudhary (appellant No. 4), Deenanath Chaudhary (appellant No. 5), Janardan Chaudhary (appellant No. 6), Sohili Devi (appellant No. 7) and Matia Devi(appellant No. 8) came, armed with lathi, bhala and 3 farsa and began abusing the brother of the informant Thakur Chaudhary(deceased). When Thakur Chaudhary forbade them from abusing, then Rosan Chaudhary (appellant No. 1), Nand Kumar Chaudhary (appellant No. 2), Pratap Chaudhary (appellant No. 3), Deenanath Chaudhary (appellant No. 5) assaulted with lathi and farsa on the head and body of the victim, as a result of which he fell down and became unconscious. It is further alleged that when the informant, his mother Anihiya Devi(not examined) and the sister-in- law(deceased’s wife), P.W. 6 came to save the victim, then they all were also assaulted by means of danda, bhala and farsa. On alarm being raised, the villagers Ram Lakhan Singh(P.W. 1), Fagu Chaudhary (P.W. 2), Kamla Chaudhary (P.W. 3), Raghunath Bhagat (P.W. 4) and many other people came, who saw the occurrence and pacified the dispute. Subsequently, the villagers brought the injured and the victim Thakur Chaudhary to the hospital on Tamtam (horse driven carriage), but the victim Thakur Chaudhary died immediately after reaching to the hospital. On the basis of the aforesaid fardbeyan, Uchka Gaon P.S. Case No. 38 of 1982 was registered on 26.05.1982 at 3:00 P.M. under Sections 147, 148, 149, 323, 324, 307, 302 of the I.P.C. Mehandi Hasan (not 4 examined) and Kamla Chaudhary (P.W. 3) were made attesting witnesses to the fardbeyan. The police after investigation submitted chargesheet and on cognizance being taken, the case was committed to the Court of Sessions where charges were framed against all the eight appellants under Section 302/149 I.P.C. and Section 307/149 I.P.C. on 4th of December, 1987 whereas the charge under Section 302 I.P.C. was also framed against the accused Pratap Chaudhary. The prosecution in order to substantiate the charges examined 11 witnesses of which P.W. 1 is Ram Lakhan Singh, P.W. 2 is Fagu Chaudhary, P.W. 3 is Kamla Chaudhary, P.W. 4 is Raghunath Bhagat, P.W. 5 is Kanhaiya Manjhi, P.W. 6 is Godhani Devi, wife of the deceased, P.W. 7 is Shanti Devi, the wife of the informant, P.W.8 is Dr. Binod Kumar Bihari, the Medical Officer who conducted the postmortem on the dead body of the Thakur Chaudhary and examined three injuries. P.W. 9, Rana Ragho Ram Singh is the A.S.I. of Police who recorded the fardbeyan. P.W. 10 is Chandrama Chaudhary, informant and brother of the deceased. P.W. 11 Ashok Kumar is the Police Inspector and I.O. of the case. The defence has not examined any witness. 5 All the witnesses, including P.W.6-the wife of the deceased, P.W. 7- the wife of the informant and P.W. 10- the informant himself, have not supported the prosecution case, except the Doctor - P.W. 8, the I.O.- P.W. 9 and the police Officer-P.W. 11(who recorded the fardbeyan). Learned Trial Court relying on the evidence of P.W.s 6, 7, 9, 10 and 11 had come to the conclusion that the prosecution has been able to prove the charges under Sections 302/149 I.P.C., though charges under Section 302 I.P.C. against Pratap Chaudhary and charges under Sections 307/149 I.P.C. have not been proved and accordingly the judgment of conviction was recorded. Hence, this Court has to see whether the evidence of P.W. 1 to P.W. 7 and P.W. 10, in any manner helps the prosecution to prove its case or it lends more credit to the contention of the defence. P.W. 1, in para I of his evidence has stated that he never went to the door of the deceased and his statement was not recorded by the police. In any circumstance, learned Trial Court allowed the prosecution to cross examine the witness under Section 154 of the Evidence Act where the contention of the witness was drawn towards his 6 statement under Section 161 where he claims himself to be the eye witness. It is well settled law that the statement before the police under Section 161 can be used by the prosecution or the defence for the corroboration and contradictory purposes, but since this witness does not support the case at all, hence drawing of the attention of P.W. 1 towards the statement under Section 161 Cr.P.C. has no meaning. The evidence of this witness further gets jeopardized in view of his cross examination by the defence in para 3, where he admits that his house is 1 K.M. away from the place of occurrence, whereas the case of the informant in the fardbeyan is that this witness came to the place of occurrence after the assault, when alarm was raised. Hence, on this score also the question of this witness having seen the manner of occurrence, gets doubtful. P.W. 2 has also stated in para 1 of his evidence, that his statement was not recorded by the police, hence the prosecution was allowed to cross examine him under Section 154 of the Evidence Act. This witness has also, in para 3, admitted that his house is 20 bighas away from the place of the occurrence. Admittedly all the witnesses reached the P.O. after the assault and on alarm being raised by the informant, and P.W. 2 also admits that he could not see the manner of 7 assault. P.W. 3 in para I has stated that he can not say about the time and the date of occurrence and his statement was also not recorded by the police and in para 3, he has stated that he went to get the animals grazed and came home at 6:00 P.M. P.W. 4 has also stated that he has not seen the occurrence and his statement was also not recorded by the police. In para 3 of his cross examination, this witness has stated that he went to Thawe market at 11:00 A.M. and returned at 8:00 P.M. P.W. 5, the Chaukidar of Arna village has stated that he can not say that how and by whom the victim was assaulted. Moreover, he has also stated that his statement was not recorded by the police. In his cross examination, this witness has stated that his house is at the distance of 10 bighas from the place of occurrence and that he was not well on the date of the occurrence. Hence, P.W.s 1 to 5 have not supported the prosecution case and have been declared hostile, but there is nothing in their evidence to suggest that they saw the occurrence, hence they are of no help in proving the prosecution case. P.W. 6 is the wife of the deceased, who in 8 para I of her evidence has admitted the presence of all the eight appellants and the fight with her husband by all the eight appellants, but she has stated in para 1 that she was inside the house and stone was pelted by the appellants, as a result of which she received injuries. She also admits to have seen the husband (deceased) and the informant lying in an injured condition. But in para 4, this witness has stated that she went inside the house and could not see the actual occurrence. Moreover, her statement was not recorded under Section 161 Cr.P.C., as a result of which this witness has been declared hostile. In para 3 of her cross examination, this witness has specifically stated that by the time she came out of the house, the assault was over. Though in para 2 of her cross examination conducted by the prosecution under Section 154 of the Evidence Act, P.W. 6 has deposed that she stated before the police that Deenanath Chaudhary assaulted with farsa, which accidentally hit on the neck of the accused/appellant Pratap Chaudhary. Though P.W. 6 has been declared hostile, but the part of her evidence to the extent of the presence of all the eight appellants at her door and fight with the victim, can be accepted but that alone will not help the prosecution to prove the charges under Section 302/149 I.P.C., since she has not stated that as to with which weapon the 9 accused were individually armed, or the specific accusation made by any of the accused, which becomes relevant in view of the evidence of the doctor, in para 5 where the cause of death has been cited to be injury nos. 1 and 7, whereas the victim received altogether eight injuries, of which injury nos. 1 and 2 were caused by sharp cutting weapon, while injury nos. 3 to 8 were caused by hard and blunt substance. It is settled principle that the Courts are entitled to rely upon the part of the testimony of the witness who have been permitted to be cross examined by the prosecution. The question of consideration of the evidence of the hostile witnesses came to be considered in the case of State of U.P. Vs Ramesh Prasad Mishra, reported in 1996(10) SCC 360 para-7 where it has been held:- “It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of prosecution or accused but it can be subjected to a close scrutiny and that portion of evidence which is consistent with the case of the prosecution or defence, may be accepted” P.W. 7 is the wife of the informant, and she has stated that she was at her Maike when the occurrence took place and her statement was not recorded by the police. In para 4 of her cross 10 examination, she had admitted to be in her Maike and that she came to the informant’s house after two to three days of the occurrence, hence the evidence of P.W. 7 can not be used for unfolding the prosecution case. P.W. 8 is the doctor, who conducted the postmortem of the victim and examined the injuries. P.W. 8 found eight injuries on the dead body of Thakur Chaudhary of which injury nos. 1 and 2 were stitched wounds, but the doctor who stitched the wound has not been examined by the prosecution and the rest injuries, found were one swelling, one abrasion and four bruise injuries. In para 9 of his evidence, the doctor has specifically stated that since the injury nos. 1 and 2 were stitched, hence he could not give an opinion whether they were sharp cutting weapon injuries or lacerated injuries. Hence on this score also the prosecution has not been able to prove the manner of the occurrence as claimed by the informant in the fardbeyan. P.W. 8 has also examined the injured P.W. 6, Godhani Devi and found four injuries of which injury nos. 2 to 4 are swelling injuries, whereas injury no. 4 to 7 are bruises. The doctor found eight injuries on the person of injured Anihiya Devi, mother of the deceased but since Anihiya Devi has not come forward to depose, hence there is nothing on record to suggest that Anihiya Devi received 11 any injury in the same transaction. P.W. 8 found altogether 15 injuries on the person of the informant, i.e., P.W. 10, but since P.W. 10, in his evidence, has not accepted the injuries to have been caused in the same transaction, the injuries of P.W. 10 does not help the prosecution to corroborate the charges made against the accused persons. P.W. 9 is the formal witness and has simply recorded the fardbeyan. P.W. 10 is the informant, who had admitted that the accused persons assaulted the victim in bathan. Though P.W. 10, in para 3, has admitted the existence of fardbeyan, but at the same time he has stated that the fardbeyan was not read over to him, whereas P.W. 9, the Police Officer who recorded the fardbeyan, has stated that the fardbeyan was read over to P.W.-10-the informant, but the contention of the informant gets corroborated with the evidence of P.W. 6, wife of the deceased who in para 1 has stated that when she came out she found her husband and the informant lying in an injured condition. The evidence of P.W. 8, who found altogether 15 injuries on the person of the informant, of which injury no. 1 to 6 were incised injuries, corroborates the evidence of the informant that he was not in a condition to hear and understand the contents 12 of the fardbeyan. In para 6 of his cross examination, P.W. 10 has specifically stated that on alarm being raised, when he went to the P.O., he saw the deceased and other family members in injured condition, hence from the evidence of P.W.s 6 and 10, only fact of the presence of the accused persons at the P.O. is proved but the manner of the occurrence is not proved with the help of the evidence of P.W. 10. Though the inference can be drawn with regard to the involvement of the accused persons in view of the injuries found on the dead body of the deceased and the injured persons but the said inference is not sufficient to prove the charges beyond shadow of reasonable doubt. Though P.W. 11, the I.O., has stated that the statements of P.W.s 2, 3, 5, 6, 7, 10 were taken, but it was not stated to him about the specific role played by any of the accused persons. Moreover the statement recorded under Section 161 Cr.P.C. can only be used for corroboration and contradictory purposes and nothing more and since the eye witnesses have claimed that they were not present at the place of the occurrence, hence their statement under Section 161 Cr.P.C. is of no use. In the result, we find that the prosecution has failed to prove the manner of occurrence. So far as the place of occurrence is 13 concerned, as per the fardbeyan the occurrence took place at the Bathan. P.W. 11, the I.O. has found the Bathan contiguous to the house. P.W. 6, in para, 1 has stated that the victim was in the house when the occurrence took place, whereas the informant in para 2 has specifically stated that the victim was assaulted in Bathan and in para 6 of his cross examination the informant has stated that, on alarm when he went to the P.O., he found both the deceased and the injured there, meaning thereby that the informant wanted to suggest that the entire occurrence took place at one and same place i.e., the Bathan. This claim of the the informant not only contradicts the evidence of P.W. 6, who suggested the part of place of occurrence inside the house, but also the evidence of P.W. 11, the I.O. who in para 3 and 4 of his evidence has stated to have found two places of occurrence. The first place of occurrence is the Angan of the informant where the informant was taking Sattu(gram powder), when the occurrence took place, whereas the second place of occurrence is the Bathan. This inconsistency in the evidence of P.W.s 6, 10 and 11 creates serious doubt about the true unfolding of the prosecution case by the witnesses, particularly the informant which compels us to hold that the prosecution has failed to prove the place of occurrence and makes us 14 uncomfortable on relying upon the evidence of the informant. So far as the motive is concerned, in the fardbeyan, it is stated that appellant No. 7, Sohili Devi, was having illicit relationship with some people and in this regard some written communications through letters were in possession of the deceased, which led to the occurrence. Surprisingly, no effort has been made to produce such letter before the I.O. or before the Court, nor any effort was made to prove the motive. It is true that when the ocular evidences are available then the motive takes a back seat, but in the circumstances where the prosecution witnesses have failed to support the prosecution case, then proving of the motive was imperative on the part of prosecution. The alleged motive in the fardbeyan as it appears, has not even been investigated by the I.O., P.W. 11 and the motive alleged in the fardbeyan further gets punctured with the evidence of P.W. 6., who, in para 2 of his evidence, has alleged that the reason for the occurrence was “Khunta”. Hence the prosecution has measurably failed to prove the motive. It appears that the I.O. has conducted the investigation in perfunctory manner which gets suggested from his evidence as he did not bother to send 15 the blood stains for chemical examination, whereas Mehandi Hasan, attesting witness of the fardbeyan has been withheld. Anihiya Devi, mother of the deceased who was also injured, upon whom the doctor(P.W. 8) found altogether eight injuries, has not come forward to depose during trial. The prosecution has also not examined the neighbors, who as per the fardbeyan took the victim and the injured to the hospital on Tamtam (horse driven carriage) and has also not examined the driver of the Tamtam(horse driven carriage), in which the victim and the injured were carried to the hospital. We, thus find that the prosecution has miserably failed to prove the place and manner of occurrence, as well as the motive alleged. Moreover, the evidence on record is not at all sufficient to prove the case beyond the shadow of reasonable doubt. The prosecution story has also not been unfolded in a manner, so as to lead unerringly to prove the accusations against the appellants. In such circumstances, the benefit of doubt definitely weighs in favour of the appellants. In the result, the judgment and order of conviction dated 17th of August, 1988 passed by the 3rd Additional Sessions Judge, Gopalganj in Sessions Trial No. 504 of 1981/31 of 1986 is set aside. All the eight 16 appellants are acquitted of the charges. They are also discharged from the liabilities of their respective bail bonds. The appeal is accordingly allowed. Patna High Court Dated 04th of November, 2010 Shageer/AFR (Shyam Kishore Sharma, J) (Dinesh Kumar Singh, J.)