IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL No.288 OF 2003 Appeal against the Judgment of conviction dated 23.01.2003 passed by the Addl. Sessions Judge, Fast Tract Court No.III, Patna in S.T. No. 1141 of 1993. Liaquat Mian, S/o. Late Lachan Mian, R/o. Village- Ajma, P.S. Naubatpur, District- Patna. ------------------(Appellant) Versus THE STATE OF BIHAR--------------------------(Respondent) Counsel for the Appellant: Mr. Dev Kumar Pandey, Advocate. Counsel for the State: Mr. Ashwini Kumar Sinha, Addl. P.P. P R E S E N T THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ------------- C.M. Prasad & Dharnidhar Jha, JJ. 1. This appeal is against the Judgment dated 23.01.2003 of the Ad hoc District & Sessions Judge-cum-Fast Track Court No. III, Patna passed in Sessions Trial No.1141 of 1993, whereby the appellant has been convicted under Sections 302 and 201 of the I.P.C. as well as Section 3/5 of the Explosive Substances Act and respectively sentenced to undergo R.I. for life and R.I. for five years and R.I. for Seven years. The appellant was also convicted under Section 341 I.P.C. but no further sentence was passed in this count. All the sentences are to run concurrently. 2. At the very outset it has to be mentioned here that co- accused Barbat Mian, being on bail, was also charged under Section 302 I.P.C. and he was facing the trial along with this appellant but he absented in the trial-court since 12.10.2001 and remained absconding thereafter, hence, vide trial-court’s order dated 12.02.2002 he was declared absconder and his trial was separated from the appellant and 2 thereafter, the trial proceeded against the appellant only. The appellant was produced and remanded in the case before the trial-court on 27.01.1998. 3. The fardbeyan of the case was recorded by S.I., S.K. Tiwary (not examined) on 01.09.1993 at 10.15 P.M. at Referral Hospital, Naubatpur on the statement of Munna Kumar (not examined), the son of the deceased Bal Kishun Mahto. The fardbeyan was given in presence of co-villager Sunil Kumar (not examined), another son of the deceased. The informant stated that his father (deceased) had taken some land, adjacent west of his house from co-accused Barbat Mian and since last three years he had fixed his Nad on the land for feeding his cattle. He stated that some money had also been paid to Barbat Mian for this land. It was further stated that, that day at about 8.00 - 8.15 P.M. co-accused Barkat Mian came to his house and asked his mother Mithileshia Devi (deceased) to remove the Nad-Khoota from the land. The mother told that it would be removed in the next morning. In the meantime his (informant’s) father (deceased Bal Kishun Mahto) who had returned from Patna after performing his duty there and was changing his clothes in the house came out and told that Nad will be removed in the next morning. But co-accused Barbat Mian came with his Khanti and he began digging up the Nad on the land. Co-villagers Kameshwar Mahto (not examined) and Phaudari Mahto (not examined) came there and they persuaded Barbat Mian not to uprooting the Nad at that time when the deceased undertook to remove the same in the next morning. In the meantime, the appellant came there saying that protest was being made in the removal of 3 the Nad, ordered for assault. Altercation also took-place between the parties. In course of that co-accused Barbat Mian assaulted his (informant’s) father (deceased) and mother (deceased) with Khanti. At that time the appellant went to his house and came back with bomb and sword and shouted to kill. Barbat Mian moved away and went near the appellant then the appellant threw a Bomb on his (informant’s) father (deceased) but the father moved away and saved himself. The bomb hit on the wall there and it exploded. The bomb explosion hit and injured his (informant’s) mother (deceased), Kameshwar Mahto, (not examined), his (informant’s) younger brother Rajesh Kumar and Umesh Kumar. After receiving bomb injury the injured persons cried and fled away towards the village. His (informant’s) father (deceased) tried to lift up his (informant’s) mother (deceased), who was fallen there but the appellant hit him (deceased father) on the head with sword, as a result of which receiving injury he fell down there. Thereafter, the appellant also assaulted his (informant’s) mother (deceased) on her head, neck and arm with sword, as a result of which she, after receiving injury became unconscious and blood started flowing from the injury. Then the appellant dragged his (informant’s) father (deceased), who was laying unconscious and took him at his Darwaja and there he further gave sword blows on his elbow and palm and his father succumbed to the injuries there. By that time several villagers rushed up to the place and on their arrival both the accused persons fled away. The informant, his injured mother as well as Kameshwar Mahto came to Hospital where they were treated. The fardbeyan of the informant was recorded in the 4 hospital in course of treatment. The informant’s mother is said to have died in course of treatment. 4. As many as four witnesses were examined by the prosecution. Prosecution did not examine the informant, the I.O. and the doctor who had conducted the post mortem examination on the deceased. 5. P.W.1 Umesh Mahto @ Umesh Kumar, the cousin of the informant was examined on 17.05.2000. He stated in his evidence that on 01.09.1993 at about 8.00 to 8.15 P.M. co-accused Barbat Mian called his aunt Mithileshia Devi (deceased). He along with his aunt came out at his Darwaja. Co-accused Barbat Mian asked his aunt to remove the Nad situated on the adjacent land. She said since it was night time the Nad would be removed in the ensuing morning. In the meantime his uncle returned from his office and he also told that the Nad would be removed in the next morning. At that time Kameshwar Mahto and Phaudari Mahto came there and they persuaded Barbat Mian saying that Nad would be removed in the next morning but the appellant Liaquat Mian also came at that time and he exhorted for assaulting saying that the Nad was not being removed. Then the appellant returned and co-accused Barbat Mian started breaking the Nad with Khanti. His aunt (deceased) tried to catch- hold of the Khanti but Barbat Mian assaulted his uncle and aunt with Khanti. In the meantime the appellant carrying a bomb in one hand and a sword in another hand came there running. He threw the bomb on the uncle but the uncle leaned down and the bomb hit on the wall there and it exploded. He (P.W.1), his aunt, Kameshwar Mahto, Phaudari Mahto and Rajesh were hit by the splinters. The aunt fell down and his uncle tried to 5 lift her up but the appellant gave a sword blow on his uncle’s head. Receiving head injury his uncle fell down. Then the appellant gave sword blows on his aunt’s head and shoulder. Thereafter, the appellant dragged his uncle to his house where he (appellant) gave several sword blows on his uncle’s head, as a result of which his uncle died there. When the villagers rushed to the place the accused persons fled away. He further deposed that with the help of villagers he brought his injured aunt to Naubatpur Hospital but she died there in course of treatment. This witness identified the appellant in dock. In cross-examination, P.W.1 stated that there are 40-45 houses in his village and the houses of Phaudari Yadav and the appellant are closed to his uncle’s house. He also stated that there are four houses close to his uncle’s house. He stated that the land on which the Nad situated belong to co-accused Barbat Mian. He stated that at the time of occurrence Kameshwar Mahto, Phaudari Mahto and informant Munna Kumar were present there. He also stated that after receiving bomb injury he and Rajesh remained there and other witnesses fled away. In para-9 of the cross-examination he deposed that he saw the occurrence while hiding himself inside the bush there and he also said that at the time of occurrence there was light in front of him. He also stated that after the occurrence villagers had assembled at that place. This witness has denied the defence suggestion that at the time of occurrence it was dark there and that the informant and several persons gathered on his side and that those persons had caused assault in darkness causing injury to the prosecution party and that the accused have been falsely implicated. 6 6. P.W.2 Vimal Kumar Mishra is the doctor, who examined the injured at Referral Hospital, Naubatpur. He deposed that on 01.09.1993 he had examined Phulmati Devi deceased (named as Mithileshia Devi in the fardbeyan) and found the following injuries on her person:- (i.). Complete defacement of left side of face and neck due to sharp cuts and profuse bleeding from multiple blood vessels. (ii). A very deep sharp cut on the right side of neck having profuse bleeding from it. (iii). Multiple sharp cuts measuring 6” to 4” in length and all scalp deep on left side of neck and on occipital. (iv). A sharp cut measuring 3” X 2” X skin deep on the dorsum of right hand. (v). A sharp cut 2”x2 m.m. x muscle deep on the dorsum of right hand. (vi). A very deep sharp cut up to bone on the vertical aspect of right arm near exilia. (vii). Mutilation of left thumb on left index finger and left half of palm. The age of the injury was within six hours. The injury Nos. (i) to (vi) were caused by sharp cutting weapon and injury No.(vii) by bomb splinters. The doctor opined that injury Nos. i, ii & iii were dangerous to life and injury No.iv, v & vii were grievous in nature. The injured was referred to P.M.C.H. The injury report was proved and marked as Ext- 1. He also examined Umesh Kumar P.W.1 and found the following injuriy on his person:- 7 (i). A lacerated wound 2 c.m. X 2 c.m. on the dorsum of left hand. The age of injury was within six hours and caused by bomb splinters. It was simple in nature. The injury report was proved and marked as Ext-1/1. The doctor further examined Kameshwar Mahto and found the following injury on him. (i). A lacerated wound 1”x 2 m.m. x skin deep below left knee on the medial side. The age of injury was within six hours and it was simple in nature and caused by bomb splinters. The injury report was proved and marked as Ext-1/2. The doctor also examined the injured Phaudari Yadav and found the following injury on him. (i). A lacerated wound size ½ c.m. X ½ c.m. below left knee. Age of the injury was within six hours. Its nature was simple and it was caused by bomb splinters. According to the medical evidence the injuries were caused by sharp cutting weapon like sword and splinters of bomb. 7. P.W.3 Bindeshwari Paswan is the Choukidar, who is said to have informed the police station on having come to learn about the occurrence. But this witness has turned hostile and in his examination-in- chief he stated that he had not gone to the police station for giving any information about the occurrence. During cross-examination by the Addl.P.P. he denied that in the night of 01.09.1993 at 8.35 p.m. he had 8 informed the police station that he had heard the sound of bomb explosion from the side of village Ajma, the P.O. village. P.W.4 Rajeshwar Singh is a formal witness, who has proved the writings on the fardbeyan marked as Ext-2. He has also proved the writings of seizure list marked as Ext-3 but any witness was not examined to prove the factum of any seizure from the P.O. This witness has also proved the writings on the inquest report of deceased Balkishun Mahto marked as Ext-4. He also proved the writings on the inquest report of deceased Mithileshia Devi marked as Ext-5. This witness also proved the writings from para-1 to 108 of the case-diary in the writing of S.K. Tiwary and it was marked as Ext-6. But the I.O. namely, S.K. Tiwary has not been examined by the prosecution nor there is any explanation for his non-examination. This witness further proved the writings on the post mortem report of deceased Mithileshia Devi in the writing of Dr. M.I. Alam and it was marked as Ext-8. He also proved the writings of the same Dr. M.I. Alam on the post mortem report of deceased Balkishun Mahto and it was marked as Ext-9. Simply the writings of the doctor on the post mortem report have been formally proved by this Court but prosecution has not examined the doctor nor any explanation has not been shown by the prosecution for his non- examination. 8. In order to prove the occurrence the prosecution has examined only one witness P.W.1 as eyewitness to the occurrence. According to the fardbeyan the informant, who was the son of the deceased couple, and he claimed to be an eyewitness as well as Rajesh Kumar the full brother of the informant, Kameshwar Mahto and Phoudari 9 Yadav the neighbours, who all claimed to be the eyewitnesses but non has been examined by the prosecution. It was also stated in the fardbeyan as well as in the evidence of P.W.1 that after occurrence several villagers had rushed to the P.O. Thus many of the villagers who had rushed to the place of occurrence would have witnessed the facts and circumstances regarding the occurrence at the P.O., but none of these villagers too has been examined by the prosecution. In the record there does not appear to be any kind of explanation by the prosecution for non-examination of these witnesses. 9. In para-17 of the trial-court’s judgment the learned trial judge considered the submission of the learned Addl.P.P. that on account of fear psychosis the witnesses might not have turn up and taking it a reasonable explanation for the non-production of the other witnesses including the informant it held that the non-production of such witnesses was not detrimental to the case of prosecution and relying solely on the evidence of P.W.1 the appellant was convicted. But this approach of the learned trial judge is not acceptable. There is nothing on record to show that there was any cause or occasion for causing of any threat or fear psychosis in the prosecution witnesses. If any threat or fear was there it could have been from the appellant or the co-accused Barbat Mian. The trial-court’s record shows that Barbat Mian was earlier on bail and he regularly attended the trial-court till 26.09.2001 and he absconded since 12.10.2001 and, therefore, his trial was separated from the present appellant from 12.02.2002. Thus, since 12.02.2002 the trial proceeded only against the appellant, who has remained in custody since 1998. 10 There is nothing on record to show that till 12.10.2001 when the co- accused Barbat Mian was in attendance before the trial-court any petition was filed before the trial-court on behalf of the prosecution expressing any fear or threat given by Barbat Mian. There is also nothing on record to show that after 12.02.2002, since when Barbat Mian absconded any threat was given to any witness by this appellant. Thus, in the circumstance, the ground of fear-psychosis as has been relied upon by the learned trial-court for non-production of the prosecution witnesses is nothing but a guess work. Due to the reasons it has to be held that prosecution has failed to give any reasonable explanation or non- production of any of the several eyewitnesses excepting the informant. 10. Out of the eyewitnesses the informant and his full brother Rajesh Kumar were the sons of the couples but despite being the sons of the couple they have not come to support the occurrence in which the two deceased are said to have been brutally killed. It is never expected that two sons being eyewitnesses will spare the killers of their parents and chose not to come and depose against the assailants, unless extreme or immense type of disability or hardship. There is nothing on record to show that the two sons were prevented by any reasonable cause from appearing and deposing before the Court. In such view of the matters an adverse inference has been drawn against the case of the prosecution for the non-production of these two witnesses. 11. The other witnesses namely, Kameshwar Mahto, Phaudari Mahto who are said to be the eyewitnesses and had received bomb injury have also not been examined nor there is any explanation by the 11 prosecution for their non-examination. According to the fardbeyan as well as the evidence of P.W.1 several villagers had rushed to the P.O. after the occurrence, but none of them has been examined by the prosecution. The non-examination of these witnesses will certainly call for drawing an adverse inference against the case of the prosecution, in the manner that if produced, these witnesses would not have supported the case of prosecution, therefore, the prosecution did not examine them. 12. The doctor who held the post mortem examination on the two deceased has also not been examined and there is no explanation for his non-examination. Due to the non-examination of the doctor the cause of death could not be established through medical evidence. The Investigating Officer has also not been examined by the prosecution and there is no explanation for his non-examination. Due to non-examination of the I.O. many of the objective evidence, which are required for establishing the place of occurrence and the mode and manner of occurrence said to have taken place has not been brought on record. This is a serious defect in the case of the prosecution. 13. The P.W.1 is the only witness who has come to support the occurrence. But, due to some infirmities in his evidence his credibility comes under the shadow of doubt. P.W.1 deposed that he was present at the place of occurrence and after the explosion of bomb he saw the occurrence which includes the occurrence of the killings of the two deceaseds by sword blows at the hands of the appellant when the sword blows were given at the place of Nad-Khunta as well as at the Darwaja of the appellant where deceased Balkishun Mahto had been dragged to and 12 further assaulted. But in the fardbeyan, which is the written statement containing the L.T.I. of the informant, it is stated that after the bomb explosion Umesh Kumar (P.W.1) and others who were present there and who had received injuries had cried and fled away towards village. The occurrence of the killings of the two deceased is said to have taken place after the explosion of bomb and it must have taken sometime because the sword blow to the deceased is said to have been given in the manner that firstly the blow was given at the Nad-Khunta and, thereafter, one of the deceased namely, Balkishun Mahto was dragged by the appellant to his house and further assault was caused there. Though the P.W.1 claims to have remained at the P.O. but in view of the statement of the informant as in the fardbeyan that the P.W.1 had fled away after receiving bomb injury it becomes highly doubtful that P.W.1 had seen the occurrence of assault on the deceased at the hands of the appellant. 14. Besides this there are other infirmities also which make the evidence of P.W.1 doubtful. The P.W.1 at para-9 of his cross-examination stated that he had seen the occurrence while hiding inside a bush there. Thus, in a situation when one claims to have seen an occurrence keeping himself concealed in bush, circumstances must be explained to show that there was clear visibility or occasion enabling him to witness the occurrence from the place of hiding. In normal case it is difficult to witness any occurrence from inside a bush. The P.W.1 says that he was hiding inside the bush. The occurrence of assault on the two deceased is said to have taken place not only at the Nad-Khunta but also at the Darwaja of the appellant where one of the deceased is said to have 13 dragged away for further assault. In the evidence of P.W.1 there is nothing to show that the bush in which he was hiding situated near the Nad-Khunta and that the place as well as the Darwaja of the assailant was at such a distance or in such a direction that it was possible to see the occurrence taking place there. Due to this infirmity the claim of the P.W.1 that he saw the occurrence of assault from the bush becomes doubtful. 15. The P.W.1 claims that he had seen the occurrence from inside the bush and there was light outside the bush, but any means of light is not explained. The defence has given a categorical suggestion to P.W.1 that at the time of occurrence it was dark at the P.O. In the examination-in-chief the P.W.1 has deposed that when co-accused Barbat Mian had asked his aunt to remove the Nad from the P.O. the aunt had stated that since it was night time the Nad would be removed in the next morning. Thus, due to night time, meaning thereby, there was no light, it was stated that in the next morning the Nad will be removed. 16. In the light of these evidences and circumstances when the accused persons requested for removal of the Nad and it was not accepted by the informant side due to it being night and the defence suggesting that there was darkness at the time of occurrence, it was the bounden duty of the prosecution to establish the claim of light at the P.O. by proving the means of light. But prosecution does not say anywhere as to what was the source or means of light. In case the source or means of light not being established, the claim of P.W.1 that from inside the bush he saw the occurrence of assault taking place near Nad as well as the Darwaja of the 14 appellant becomes unreliable. 17. In course of hearing learned Addl.P.P. argued that the appellant has also been convicted for another offence of murder and one another appeal is pending before this Court. Learned counsel for the appellant rightly replied that each case has to be proved independently and conviction in one case cannot be used for passing of an order of conviction in another case. 18. The P.W.1 is the only witness who has come to prove the occurrence. But in view of the facts and circumstances and the infirmities as discussed above the testimony of this witness becomes highly doubtful. It is not safe to rely on the evidence of this witness. In such view of the matters, the appellant becomes entitled to benefit of doubt and, thus, giving benefit of doubt the appellant is acquitted of the charges. The judgment of conviction and sentence as passed by the learned trial-court is set aside. The appellant Liaquat Mian, if not required in any other case, is ordered to be released forthwith. 19. The appeal is accordingly allowed. Patna High Court, Dated 17th Sept., 2009, N.A.F.R/Mkr. (Chandra Mohan Prasad, J.) (Dharnidhar Jha, J.)