CRIMINAL APPEAL No.281 OF 1989 ******* Against the judgment of Sri Ram Kishore Singh Sessions Judge, Katihar, dated 17th June, 1989 passed in Sessions Trial no. 31 of 1987. ******* 1. Bakar Haji alias Abu Bakar, 2. Rakibul Haque alias Rafique, 3. Majaharul Haque alias Majrul, 4. Md. Ekram, 5. Md. Bilayat Ali, 6. Md. Amzad Ali, 7. Naushad Alam, 8. Md. Taslim. -------------Appellants Versus The State of Bihar --------- Respondents ******* For the Appellants : M/S Ashwani Kr. Singh, Rakesh Kr. Sinha, Anuj Prakash, & Nurul Hoda For the State : Ms. Shashi Bala Verma For the Informant : M/S.Tarun Kr. Sinha & S.P. Burnwal ******* 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 Eight appellants have preferred the appeal against the judgment and order dated 17th June, 1989 of the learned Sessions Judge, Katihar, in Sessions Trial no. 31 of 1987 whereby the learned Sessions Judge held all the appellants guilty under Section 302 of the Indian 2 Penal Code and sentenced them to undergo rigorous imprisonment for life. 2. Written report (Exhibit-2) was submitted to Officer-in-charge, Barari, by P.W.12, Umesh Prasad Singh, on 6th November, 1985 at 10.30 A.M. alleging therein that his nephew, Hari Prasad Singh (the deceased) and Jagdish Prasad Singh (P.W.4) have got settlement of fishing of Chatgar Gajari Jalkar of the year 1985-86. On 05th November, 1985 at 11.00 A.M. Hari Prasad Singh (the deceased) left his house for going to Allahabad Bank, Bhandartal, for depositing an amount of Rs.1,004/- . He was having a wrist watch also. The informant came to know about this through wife of Hari Prasad Singh (deceased). As soon as the informant’s nephew reached at Jalkar then he saw appellants Rakibul Haque alias Rafique, Md. Ekram, Majaharul Haque alias Majrul and Md. Amzad Ali fishing. The informant’s nephew restrained them. At that time Bakar Haji alias Haji Abu Bakar, Naushad Alam, Md. Taslim and Badruddin, were standing there and at the behest of Bakar Haji for killing Hari Prasad Singh. Badruddin snatched the wrist watch and cash and the above named persons surrounded Hari Prasad 3 Singh, who was assaulted but this could not be seen by the informant. The informant was hearing the cry of Hari Prasad Singh. The aforesaid named persons assaulted Hari Prasad Singh and thereafter he was thrown after tying his hands and feet. Md. Bilayat Ali later on asked to take out Hari Prasad Singh from the water and asked that the Police Station should be informed regarding his death. In the meanwhile, Naushad Alam and Md. Taslim took out Hari Prasad Singh and kept his body by the side of the pond. Md. Taslim went towards Semapur Police Station. Soon thereafter Dafadar of Circle no.2 (not examined) came and later on Jagdish Prasad Singh (P.W.4) came and informed the informant to proceed along with Rameshwar Singh (P.W.8), Bachhi Singh (not examined), Chhote Lal Singh (not examined), Lakhi Singh (P.W.3) and others to Chatara Gajari Jalkar and saw the dead body of Hari Prasad Singh. Dafadar of Circle no.2 and Md. Bilayat Ali asked the informant and his persons to carry the dead body for cremation because it was a case of drowning. According to him, the body was carried to the village. In the meanwhile, Jamadar came and he advised that the body be brought to the 4 Police Station which was brought to the Police Station on the day following the occurrence. The motive of the occurrence was that the accused persons were forcibly fishing though the settlement of the Jalkar was taken by the deceased and another persons. Dinesh Singh (P.W.5), Brahmdeo Singh (P.W.9) and Jagdish Prasad Singh (P.W.4) are named witnesses of the written report. The written report was converted into first information report in Barari P.S. Case no. 105 dated 06.11.1985 under Sections 147, 148, 149, 379 and 302/34 of the Indian Penal Code. Investigation was taken up and after investigation charge sheet was submitted. The case was committed to the court of session where charges under Section 302/34 of the Indian Penal Code against the accused persons were framed. The accused persons pleased innocence and trial proceeded. 3. From the trend of cross-examination it appears that the defence of the accused was of false implication because of enmity from before. The trial court, after considering the oral and documentary evidence on behalf of the prosecution and defence, came to the opinion that the prosecution was able to prove the charges against the appellants beyond all reasonable 5 doubt. 4. This court is required to go into the fact as to whether the prosecution has been able to prove charges against the appellants beyond all reasonable doubt. 5. To substantiate its case, the prosecution has examined fourteen witnesses. P.W.1, Dr. Surendra Prasad Singh, has conducted the autopsy on Hari Prasad Singh and has brought on record the post mortem report (Exhibit-1). P.W.2, Animesh Chandra Pal, is a formal witness on inquest. He has put his signature on a blank paper. 6. P.W.3, Lakhi Singh, though is named witness of the written report but has been examined merely as a hearsay and he has denied that he has made any statement under Section 161 of the Code of Criminal Procedure. P.W.4, Jagdish Prasad Singh, has been examined as an eye witness. P.W.5, Dinesh Singh, P.W.10, Prakash Rai, and P.W.13, Azad Singh, were tendered for prosecution examination and their evidence is of no value of either side. P.W.6, Janak Prasad Sah, is another witness of the inquest. P.W.7, Kamleshwari Singh, has been examined as hearsay so 6 his evidence is also of no use for either side. P.W.8, Rameshwar Singh, is another hearsay witness of the occurrence. P.W.11, Neelam Kumar Singh, was Officer-in-charge of the Police Station and he has submitted the charge sheet. P.W.12, Umesh Prasad Singh, is the informant and P.W.14, Ansarul Haque, has investigated into the major part of the case. 7. On behalf of defence Abdul Khalique – a teacher, has been examined as the sole witness. He has proved the signature of Mukhiya of Sikat Gram Panchayat under whose jurisdiction Kajra village, namely, the place of occurrence village was situated. It was a sanha which was given by the accused side. 8. Prosecution has examined only two witnesses as eye witnesses. The informant is not a witness of the occurrence. The informant has stated that his nephew, Hari Prasad Singh, has taken settlement of a pond for the year 1985-86 with Jagdish Singh (P.W.4). On 05.11.1985 Hari Prasad Singh proceeded on cycle to Allahabad Bank, Bhandartal, for depositing Rs.1,005/-. At that time he was having wrist watch on his hand. The purpose of going to Allahabad Bank was that the amount of settlement of pond should be deposited. At 7 about 2.00 to 2.30 P.M. P.W.4, Jagdish Prasad Singh, came and stated that as soon as Hari Prasad Singh went on the Jalkar then Rafique, Md. Ekram, Majaharul Haque @ Majarul, Amjad Ali and Naushad were fishing. Hari Prasad Singh restrained them. Thereafter, Baker Haji ordered for assault. All the nine accused started indiscriminately assaulting Hari Singh who cried and later on calmed. Thereafter, the dead body was ordered to be drowned in the pond. Accordingly, the body was drowned but at the behest of Bilayat Ali the body was taken out from the pond. Bilayat Ali told Taslim to inform Semapur Out Post regarding the death out of drowning. In the meanwhile, Jamadar of Circle no.2 came. After hearing the news the informant went to the Jalkar and saw the dead body of his nephew, Hari Prasad Singh. Accused Bilayat Ali and Dafadar of Circle no.2 were present there. Dafadar had mechanically stated that it was a case of drowning and ordered that the dead body be taken for the purpose of cremation. The informant witnessed that blood has come out of the nostril and mouth of the deceased and his chest was swollen. Anyhow the body was taken to the village. It become evening. Later on, the informant 8 knew through Muslim and others that Jamadar has come. The informant went with the body and lodged the information. This witness is not a witness of the occurrence and he has relied upon the testimony of P.W.4. Hence, evidence of P.W.4 becomes material for the purpose of just decision of the case. 9. P.W.4, Jagdish Prasad Singh, has stated that the occurrence was of about 12.00 noon or 1.00 P.M. on 05.11.1985. This witness and Hari Prasad Singh have decided to go to Allahabad Bank for depositing Rs.1,400/-. Hari Prasad Singh proceeded on a bicycle and the informant proceeded on foot. When the informant reached near the Gajari Jalkar then he saw from a distance of 125 yards that Rafique, Majarul, Ekram and others were having altercation with Hari Prasad Singh in connection with fishing. In the meanwhile, Bakar Haji, Taslim, Badruddin, Naushad, Bilayat and others came and all surrounded Hari Prasad Singh, at the behest of Bakar Haji for killing and drowning the dead body. Badruddin took out Rs.1,004/- from the pocket and watch from the wrist of Hari Prasad Singh. Rest of the persons, who have been named as accused, have indiscriminately assaulted with club and 9 iron rod. Hari Prasad Singh prayed for being spared but two persons pressed his neck by means of iron rod. P.W.4, Jagdish Prasad Singh, got panicky and preferred to keep mum. P.W.4 saw Jagdish Singh (not examined) and P.W.5, Dinesh Singh escaping from the place of occurrence. In cross-examination this witness has stated that he has named Rafique, Majarul, Amzad and Ekram before the Officer-in-charge as the persons who were having quarrel. Attention of Investigating Officer was drawn towards the deposition of P.W.4, Jagdish Prasad Singh, in paragraph-6 but the Investigating Officer has stated that P.W.4 has not stated that Rafique, Majarul, Amzad and Ekram were quarreling and he has also stated that P.W.4 has also not described that Hari Prasad Singh was strangulated. P.W.4 stated in paragraph 3 of his evidence that he has seen the occurrence from about 100 yards from the Arhar field which has having the height of a male person. The nearest point from which this witness saw the occurrence was about 100 yards. This claim that as to whether P.W.4 has seen the occurrence from the distance from which he claimed to have seen it, is not investigated by the Investigating Officer. 10 10. Remaining witness is P.W.9 who has stated that while he was returning after selling fish and in the way when he reached at Gajari Jalkar then he saw eight to ten persons surrounding Hari Prasad Singh who was crying. This witness had named Taslim, Bilayat, Bakar Haji, Ekram, Majarul and Badruddin as accused persons. This witness could not identify accused Ekram, Majarul, Taslim and Rafique in the dock. Another surprising feature of the deposition of this witness is that he was not knowing the name of his maternal grand father. The evidence of P.W.9 has been assailed and it has been submitted that this person had not recognized the named accused in the Court but how he can recognize them from a distance from where he was concealing, is a surprise which has not been explained. 11. The doctor has conducted the post mortem examination on the dead body of Hari Prasad Singh on 06.11.1985. The dead body was brought by constable no.108, Parmeshwar Singh, and Chaukidar, Bhola Tatma (not examined). Rigorous mortis was present in lower extremities. There was bleeding from mouth and nose. The neck was swollen. The tongue 11 was protruded outside and there was venous prominence on upper chest interiorly. There was presence of bruises on the front of the neck as well as on its back. In the opinion of the doctor, the death was due to strangulation leading to asphyxia and death. 12. Learned counsel for the appellants has submitted that not only the prosecution has withheld many witnesses but have relied upon the relevant witnesses who could have invalidated the truth. It has also been submitted that there is no explanation that when the murder was taken place at 11.00 A.M. on 05.11.1985 and it was reported to the Police at 10.30 A.M. on the next day. This delay creates doubt in view of defence of presence of enmity from before. Another argument, which has been raised by the learned counsel for the appellants that when the matter was reported to the Police on 6.11.1985 at 10.00 A.M. then there is no explanation as to why the first information report was sent to Court on 08.11.1985. The settled principle of law is that the report must be sent to the court forth with and if there is delay then it has to be explained on all accounts. The delay of two days between the registration of the first information report as well as 12 sending it to the Court is prominent in view of the fact that the prosecution has tried to implicate the accused persons in view of their enmity. 13. On the other hand, learned counsel appearing on behalf of the State, supported by the learned counsel for the informant, has stated that P.Ws.4 and 9 have been examined as eye-witnesses and they are reliable witnesses and so the order of conviction is justified. 14. We have analyzed the evidences. The evidence of P.W.4 has to be considered as to whether he was in a position to see the occurrence or not. P.W.3 is a named witness of the occurrence. P.W.3 was explained prior to P.W.4 but he has stated that he has not seen P.W.4 at the place of occurrence. He has only seen the dead body. Therefore, the reliance of the prosecution on the evidence of P.W.4 also becomes doubtful. P.W.9 cannot be relied upon at all because he had identified wrong person. If a witness cannot identify the correct accused in the dock in the Court then it becomes very difficult to assume that he would be in a position to recognize the accused persons from a distance. In the court the distance between the witness 13 and the accused persons is merely of a few feets. Therefore, partial identification of P.W.9 makes the entire deposition untrustworthy and incredible and hence reliance upon his testimony cannot be said to be correct appreciation of the facts. Similarly, P.W.4 has seen the occurrence from a distance of about 125 yards and at that time he was in Arhar field. It was the only aspect which could not link the accused persons in the occurrence. This aspect has not been investigated into and the Investigating Officer has stated that P.W.4 has given different version before him when he was examined under Section 161 of the Code of Criminal Procedure. In view of this testimony of P.W.4 it appears that the prosecution has not invalidated the truth which it was required to do. Most important aspect of the case is the delay between the report to the Police and reaching the first information report in the court. This vital delay of three days have remained totally unexplained. If a case is based on solitary witness the onus is upon the prosecution to prove other facts on all counts. The prosecution has not been able to prove, beyond all reasonable doubt, that it was the appellants who were responsible for causing death in view of the 14 inconsistency in the evidence of the prosecution witnesses and due to non-submission of explanation between the time of occurrence and sending the first information report to the court below. We are of the view that the prosecution has not been able to prove the charges beyond all reasonable doubt. 15. In the result, the judgment of convictions and sentences is set aside. The appeal is allowed. The appellants, who are on bail, are directed to be discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.) Patna High Court, The 24th January, 2011. AAhmad, (NAFR).