CRIMINAL APPEAL No.200 (DB) OF 1989 With CRIMINAL APPEAL NO.242 (DB) OF 1989 ----- Against the judgment of conviction and order of sentence dated 22.04.1989 passed by Sri Bhagat Singh, 6th Addl. Sessions Judge,Sasaram in Sessions Trial No.152 of 1988. ----- 1. Parvesh Ram Rajwar son of Doma Rajwar 2. Bengali Rajwar son of Doma Rajwar 3. Subhas Yadav son of Keshwar Yadav 4. Baban Yadav son of Sheopujan Yadav 5. Singhashan Yadav son of Sheopujan Yadav 6. Basistha Yadav son of Rikhi Yadav All resident of village Gijwahi, P.S.Sasaram Muffasil,District Rohtas --- Appellants (in Cr.App.(DB) No. 200 of 1989) ---- 1.Keshwar Yadav son of Sukar Yadav resident of village Gijwahi, P.S.Sasaram (Muffsil),District Rohtas --- Appellant (in Cr.App.(DB) No. 242 of 1989) Versus The state of Bihar --- Respondent (in both the appeals) ----- For the appellants : M/s Vikram Deo Singh and Manoj Kumar & Sada Nand Roy For the State : Ms. Shashi Bala Verma, Addl.P.P. (in both the above 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 Cr.Appeal No. 200 (DB) of 1989 filed on behalf of appellants Parvesh Ram Rajwar, Bengali Rajwar, Subhas Yadav, Baban Yadav, Singhashan Yadav and Basistha Yadav and Cr.Appeal No. 242 (DB) of 1989 filed on behalf of appellant Keshwar Yadav have been heard together and are being disposed of by this common judgment because they have arisen out of one judgment dated 22.04.1989 passed by 6th Additional Sessions Judge, Sasaram in 2 Sessions Trial No. 152 of 1988 whereby he has held all the appellants guilty under Section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life. 2. Fardbeyan (Ext.3) of Lal Bahadur Yadav (P.W.9) given on 23.06.1987 at 10.00 A.M. is the basis of the prosecution case. He in his fardbeyan has stated that he was a Khalasi of one of the trucks bearing Registration No. BRJ 1171 belonging to Proprietor of Stone Crusher Sri Lalji Babu. The informant’s father Ram Bilas Yadav (deceased) was also an employee of the said proprietor of Stone Crusher Sri Lalji Babu and was working as Night Guard. After the duty of the informant’s father was over, he used to return to his village Gijwahi. In the preceding night, the informant reached at Tarachandi and stayed at night with his father Ram Bilas Yadav (deceased). At about 5.30 A.M., on the date of occurrence i.e. 23.06.1987, the informant was going to his village Gijwahi along with his father Ram Bilas Yadav and when he reached near the temple of Tarachnadi, he sat down for 3 urinating. The informant’s father proceeded to some distance. At that very time, when the informant got up after finishing natural urge, then he saw Keshwar Yadav armed with garasa and others namely, Bashistha Yadav, Singhasan Yadav and Baban Yadav armed with lathis came out from behind Tarachandi temple and encircled Ram Bilas Yadav. Meanwhile, Subhas Yadav, Bengali Rajwar and Parvesh Ram Rajwar came out from behind Mahavir temple and they also surrounded the informant’s father Ram Bilas Yadav. At that very time, Keshwar Yadav gave a garasa blow upon the head of Ram Bilas Yadav who fell down and thereafter others assaulted him indiscriminately with lathis. Seeing this, the informant returned to the office of Lalji Babu by raising hulla and told about the occurrence. Some labourers along with informant came running at the place of occurrence and saw the accused persons retreating. The informant’s father was lying unconscious. He was having several injuries upon his person. The informant went to his village Gijwahi and returned with Kanhaiya 4 Yadav (P.W.1), Niarmal Singh Yadav (P.W.4), Lalan Singh Yadav (P.W.5)and Harihar Singh Yadav (P.W.2). Injured Ram Bilas Yadav was put on a cot and taken to Sasaram Hospital but in course of treatment, he died. The occurrence took place on account of old enmity and pending litigation. The fardbeyan of the informant resulted in formal F.I.R. relating to Sasaram (Muffasil) P.S.Case No. 331 of 1987 for offences under Sections 147,148,149 and 302 of the Indian Penal Code and S.I. Md.Qasim (not examined) took up the investigation. After completion of investigation, chargesheet was submitted, cognizance was taken and the case was committed to the court of sessions where charges against all the seven accused persons were framed under Section 302/34 of the Indian Penal Code. All the accused persons pleaded innocence and claimed that they have been implicated on account of false allegation. Their further defence was that the victim himself was accused in many criminal cases and he was killed on account of his criminal activity and thereafter the 5 appellants were implicated. Their further defence was that the story as propounded by the informant was false on account of a number of inconsistencies; such as, when the victim was injured and truck drivers were available, there was no occasion for the informant to rush to his village to call the villagers to bring his injured father on cot to the Hospital and as it is said that the informant’s father was treated at Sasaram Hospital but no injury report or any paper of Sasaram Hospital has been brought on the record. 3. In order to prove its case, the prosecution has examined altogether eleven witnesses. P.W.11 has been examined twice as P.W.11 and P.W.12. P.W.1 Kanhaiya Singh, P.W.3 Ramchandra Singh, P.W.5 Lalan Singh Yadav, P.W.6 Ram Jagi Yadav and P.W.8 Murlidhar alias Murli Ram are hear-say witnesses. P.W.2 Harihar Singh Yadav, P.W.4 Nirmal Singh Yadav and P.W.7 Kedar Ram have been tendered by the prosecution. P.W.9 Lal Bahadur Singh is the informant of the case. P.W.10 is the doctor who conducted post 6 mortem over the dead body of the deceased and has proved the post mortem report which has been marked as Ext.2. P.Ws.11 and 12 have proved fardbeyan, formal F.I.R and the case diary. The Investigating Officer of the case has not been examined. No injury report is available on the record. 4. On behalf of the defence, though no witness has been examined but the certified copy of F.I.R., Chargesheet and commitment orders have been marked as Exts. A,B and C to C/1 to exhibit about the criminal activities of the deceased Ram Bilas Yadav. 5. The trial court after considering the evidences on record and after hearing the parties came to the conclusion that the prosecution has been able to prove that the accused persons caused the death of Ram Bilas Yadav in the manner as alleged by the prosecution. 6. It is to be seen here that whether the prosecution has been able to prove the charges beyond the shadow of all reasonable doubts. 7 7. P.W.1 has stated in his evidence that on 23.06.1987 at 5.30 A.M. he was informed about the occurrence and thereafter he went there. Later on inquest report was prepared in his presence. This witness is a witness of inquest report. Therefore, his evidence is of no help to the prosecution in any way. Similarly, P.Ws.3,5, 6 and 8 are hearsay witnesses and P.Ws. 2,4 and 7 have been tendered by the prosecution. So their evidences are of no help to the prosecution because neither they have seen any part of the occurrence nor they have described any role of any of the accused person. The most important and sole witness of the case is the informant who has been examined by the prosecution as P.W.9. He in his evidence has stated that on 23.6.1987 at 5.30 P.M. he along with his father was going to his house from the Crusher Machine of Lalji Singh where his father was an employee. This witness further stated that he was also working on the truck of Lalji Babu as Khalasi. When they reached near Tarachandi temple, Keshwar Yadav, Bashistha Yadav, 8 Singhasan Yadav and Banan Yadav came out from behind the temple and they encircled the informant’s father. Thereafter, Subhas Yadav, Parvesh Ram Rajwar and Bangali Rajwar came out from behind the Mahavir temple. They also encircled the informant’s father and thereafter Keshwar Yadav gave a garasa blow on the head of the informant’s father Ram Bilas Yadav who fell down and thereafter rest accused persons assaulted him with lathis. Seeing the occurrence, the informant escaped behind raising alarm and went to office of Lalji Babu. The people assembled there and thereafter the accused persons escaped. Thereafter the informant went to his village and returned along with Kanhaiya Singh, Ramchandra Yadav, Harihar Yadav, Nirmal Yadav and Lalan Yadav who are P.Ws. 1,3,2,4 and 5 respectively. They saw the informant’s father lying in injured condition and thereafter he was brought to Sasaram Hospital on a cot where he was treated but after some time he died. This witness has stated that due to previous enmity his father has been killed by the accused persons. The fardbeyan of this 9 witness was taken in Hospital on which this case originated. 8. The doctor (P.W.10) has conducted the post mortem over the dead body of the deceased on 23.6.1987 at 12.15 P.M. and found the following ante-mortem injuries: (i) Lacerated wound 2”x1”x scalp deep with fracture of scalp & collection of blood outside brain covering. (ii) Lacerated wound 3”x2”x1” with fracture of left upper arm at middle. (iii) Lacerated wound 4”x2”x1½” with fracture of bone of left leg 4” above ankle. (iv) Lacerated wound 4”x1”x1/2” at right leg. (v) Abrasion 2”x1” at right foot. (vi)Swelling defused with bruises 4”x2” at right upper arm. (vii) Swelling defused with abrasions 2”x1” at right hand. (viii) Abrasion 1”x1” at 10 right knee & (ix) Abrasion 1”x1/2” at left knee. All the injuries including injury no.(i), according to the opinion of the doctor, were caused by hard and blunt substance. 9. In this case, the Investigating Officer has not been examined. 10. Learned counsel for the appellants submits that the prosecution has failed to prove the manner of occurrence at all and it has also been submitted that the conduct of the deceased goes to show that he himself was criminal and was involved in cases and taking the benefit of death of his father, the informant has implicated the appellants. It has further been submitted that the case of the informant is that the victim got injuries at 5.30 A.M. and thereafter the informant had gone to the office of Lalji Baboo where he and his father were working and told about the occurrence and when many persons assembled at the place 11 of occurrence, the accused persons escaped and thereafter the informant went to his village which is about 7 K.M. from the place of occurrence and returned with some villagers and then brought the injured to Hospital. The informant himself was a khalasi of the truck and as other khalasis and the trucks were available, the injured should have been taken to hospital for treatment by the fastest means including by the truck but the informant left his father injured and went to the village for bringing a cot. Further argument is that the khalasis of the other trucks had come at the place of occurrence, but not a single khalasi has been examined on behalf of the prosecution. There is no plausible explanation as to why the injured was not brought hospital by the truck and why the informant has left his father in injured condition and not brought him to a nearby hospital. The common sense was that first of all the injured should have been brought to a nearby doctor to save his life but the informant has not done so. 11. Another argument of the learned 12 counsel for the appellants is that there is nothing on the record that the Investigating Officer is dead or was not available. The prosecution has not tried to bring the Investigating Officer and this has caused great prejudice to the defence because the prosecution has later on developed the case that the injured prior to his death has given some statements regarding the cause of his death to some of the witnesses. One witness namely, P.W.5 has stated that deceased Ram Bilas Yadav was in semi-conscious and he told that the accused persons have assaulted him. It has been submitted that had the Investigating Officer been examined, the defence would have put some questions which have not been brought on record. So the court has erred in relying upon the evidence of P.W.5. 12. Further argument is that the victim was taken to Sadar Hospital, Sasaram for treatment where he was hospitalized but there is no explanation as to why the doctor who treated the informant’s father has not been examined and no injury report or any 13 chit of paper in this connection has been produced. As such there is nothing on the record from which any inference could be drawn whether any treatment was given to injured Ram Bilas Yadav at Sasaram Hospital or not. The situation would have been different if the doctor of Sasaram Hospital who treated the deceased would have been examined and his evidence would have a link with the prosecution version that earlier the deceased was treated. 13. The entire prosecution case is based on the sole testimony of informant P.W.9 who has stated that firstly Ram Bilas Yadav was assaulted by Keshwar Yadav by means of garasa. The garasa is a sharp cutting weapon and if it is asserted that the assault was made by means of garasa, then the natural presumption was that the assault was caused by sharp cutting end of garasa and not by the blunt portion. If the prosecution wanted to show that the blunt portion was used, then it is bound to give the version that the assault was made by the blunt end. Unless that evidence is brought on the record, the 14 presumption is that the assault was by means of sharp cutting end. Further the informant in his evidence has stated that he was behind the accused but the very assertion was that the assault by garasa has not been substantiated nor there is assertion that the assault was by blunt portion. Hence, the doubt is created as to whether the informant has seen the occurrence or not. 14. In view of the conduct of the informant for not carrying the injured to the Hospital for treatment and instead his wasting valuable time, we are of the view that the prosecution has not been able to prove the charge behind the shadow of all reasonable doubts. Once the doubt is created in the prosecution version, then according to criminal jurisprudence, the benefit of the same will go to the accused persons. As such the appellants deserve to be acquitted. 15. In the result, the judgment of conviction and order of sentence of the appellants is set aside and both the appeals are allowed. The appellants of both the appeals are acquitted of the charges. They 15 are also discharged from the liabilities of their respective bail bonds. ( Shyam Kishore Sharma, J. ) ( Akhilesh Chandra, J.) Patna High Court, Patna The 17th January, 2011 Tahir/-(NAFR)