CRIMINAL APPEAL No.268 OF 1988 -------- Against the judgment and order of conviction and sentence dated 9th May, 1988 passed by the learned 3rd Additional District & Sessions judge, Rohtas, Sasaram in Sessions Trial No. 274/30 of 1978/80. ---------- 1. Saraju Singh, son of late Rucha Singh, 2. Balkeshwar Singh, 3. Kameshwar Singh, 4. Baban Singh, 5. Lallan Singh alias Rameshwar Singh, sons of late Ram Dahin Singh, 6. Ram Ashish Singh, 7. Lalita Singh, 8. Ram Awadh Singh, 9. Uma Shankar Singh, son of Bal Keshwar Singh, all residents of village – Auraiyan, P.S. – Kudra, District – Rohtas ………….. Appellants Versus The State of Bihar …………….Respondent -------- For the Appellants : Sarvshri Krishna Pd. Singh, Senior Advocate Arun Kumar Singh, Advocates For the State : Sushri Shashi Bala Verma, APP ---------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA ----------- Dharnidhar Jha & Akhilesh Chandra, JJ. Nine appellants before us were tried for the charges under sections 302/149 and sections 147 of the IPC. Two appellants Saraju Singh and Balkeshwar Singh were separately charged under sections 302/34 of IPC on the trial of Sessions Trial No. 274/30 of 1978/80. Out of nine appellants, Saraju Singh and Balkeshwar Singh were found guilty of committing offence under sections 302/34 of the IPC and each of them was directed to suffer rigorous imprisonment for 2 life. Appellant no. 1 Saraju Singh was also found guilty of committing offence under section 436 of the IPC and was directed to suffer rigorous imprisonment for four years. The remaining seven appellants were found guilty of committing offence under sections 302/149 and section 323 of the IPC. Appellants have preferred this appeal against the above judgment of conviction and sentence which was passed by the learned 3rd Additional Sessions Judge, Rohtas, Sasaram on 9th May, 1988. 2. The informant of the case P.W. 7 Ram Charitra Pasi stated in his fardbeyan that he along with his son Banshidhar Pasi (deceased), informant Dayanidhi Pasi (P.W. 6) and Gopal Pasi (P.W. 5) was sleeping in a Marai situated at a distance of one mile towards east of the village. The informant stated that he had also some agricultural fields there. At about 12 P.M. he woke up on picking up some sound and came out of the Marai when he found the nine appellants and another accused Inder Singh (since dead) who had lathi in their respective hands. They came near the informant and at the orders of appellants Saraju Singh to assault, he himself set the Marai at fire by lighting the match stick. Appellant Balmkeshwar Singh dealt a lathi blow on the head of the informant. Appellant Baban Singh assaulted the informant with a lathi on his right hand and again the appellant Balkeshwar Singh assaulted the informant on his back and thighs. 3. On account of being set at fire, the Marai was in flames, as a result of which the deceased Banshidhar Pasi along with Dayanidhi Pasi (P.W. 6) and Gopal Pasi (P.W. 5) came out of it through its window and attempted to run away from there. The deceased Banshidhar Pasi was 3 assaulted by appellant Balkeshwar Singh and Saraju Singh incessantly on his head and other parts of the body by lathi, as a result of which Banshidhar fell down there. P.W. 6 Dayanidhi Pasi was assaulted by appellant Baban Singh, Ram Ashish Singh and Uma Shankar Singh whereas P.W. 5 Gopal Pasi was assaulted by Indar Singh (since dead), Kameshwar Singh and Ram Awadh Singh. 4. The informant raised halla, as a result of which the villagers were attracted to the scene of occurrence which included the chowkidar Bihari (not examined), Bigan Pasi (P.W. 3), Bhagel Singh Yadav (P.W. 2), Dina Sah (P.W. 4), Rambriksha Pasi (P.W. 1) and others who had seen accused persons running away from the scene of occurrence. The informant stated that he narrated the full details of the occurrence to the above noted persons and had identified the accused persons in the clear moon lit night as also in the light which was available on account of the Marai going in flames. The informant stated that he and the three injured were brought to government hospital where his son Banshidhar was lying unconscious and the three remaining injured, i.e., P.Ws 5, 6 and 7 were treated for their injuries. 5. On the basis of the fardbeyan of the informant, FIR of the case, Ext. 3 was drawn up and it appears that investigation was undertaken. On close of the same the appellants were sent up for trial. The defence of the appellants was that the Marai did not belong to the informant and that they had falsely been implicated by the informant at the instance of one Bagedan Pasi who was the Fufera brother of the informant and 4 whom the informant had met prior to going to the police station or the hospital. 6. The prosecution examined a total number of nine witnesses, out of whom P.W. 9 was a witness of formal character who proved the writings of a police officer on the first information report, as a result of which the document was marked as Ext. 3. Out of the remaining eight witnesses, P.W. 1 Ram Briksha Pasi, P.W. 3 Bigan Pasi and P.W. 4 Dina Sah who were named in the FIR and to whom the informant claimed having narrated the details of the occurrence and who had also seen the accused persons making good their escape from the place of occurrence, were declared hostile. P.W. 2 Bhagel Singh yadav alias Bhagelu Yadav was tendered for cross-examination. P.W. 8 Dr. Nawal Kishore Prasad Sinha had neither held the post mortem examination on the dead body of Banshidhar Pasi nor he had examined any of the three injured persons but he came to depose about being acquainted with the writings of his predecessor Dr. R.C. Lal as also the other doctor Dr. R.P. Bhadani who had either prepared the postmortem examination report Ext. 1 and the injury reports of the three injured marked as Exts. 2 to 2/3. This remains altogether a different question whether the above noted documents could be read into the evidence without examination of Dr. R.C. Lal who had held the postmortem examination or Dr. R.P. Bhadani who had examined the injured and prepared the report. We shall deal with this question a bit later in the present judgment. 7. Thus, what appears from the above details is that only three witnesses came to support the prosecution charges and they were the 5 informant P.W. 7 and his two nephews P.W.2 Bhagel Singh Yadav and P.W. 6 Dayanidhi Pasi. It may not be out of context to point out that it is admitted by P.W. 7 in paragraph 11 of his evidence that one of his Fufera brothers Bagedan Pasi was inimically disposed towards all the accused persons. This also appears admitted from the evidence of PW 6 Dayanidhi Pasi in paragraph 6 that injured persons were brought, firstly, to the village on cots where many persons had already assembled and that band of persons included the above noted Bagedan Pasi had detailed talks about the incident. Thereafter, the injured persons were brought to the police station and from there to the government hospital. 8. Thus, what we find is that the evidence of P.Ws. 5, 6 and 7 could not be readily accepted. The court has to put itself on guard when it has to appreciate and consider the evidence of such interested persons as could be like P.Ws 5, 6 and 7. Interestedness in the present context is from two angles. There is an element of animosity between witnesses and the accused persons on account of the admitted enmity between Bagedan Pasi and the accused persons and the second angle of interestedness is that P.Ws 5 and 6 are the nephews of P.W. 7. We have, as such, approached the evidence of the three witnesses with utter caution and care. 9. While appreciating the evidence of three witnesses, we firstly hunted for any motive as to for what the occurrence could be committed. Nowhere on the record of the case was any motive alleged. The FIR also does not contain any statement as to why the ten accused persons named in the FIR would come together after arming themselves with lathi to 6 assault the informant and his family members and also to set the marai at fire. When we went on to investigate the fact in further depth, what we found out was that the informant was making out a story that his son Banshidhar Pasi had filed some informatory petition against the accused persons in the court of S.D.M., Bhabhua. We do not find on the record of the case that the said informatory petition was brought on record. The informant in his evidence stated that a proceeding under section 107 of the Code of Criminal Procedure was initiated, probably, on that information petition which was filed by the deceased Banshidhar Pasi, before the S.D.M. Bhabhua. The informant initially stated that Banshidhar, the deceased had deposed against the appellants on that very day and as such, the informant wanted us to believe that the appellants had formed an unlawful assembly with a pre-determination of common object so as to prosecute it and thus, committed the offence. But, when we further went on to consider the evidence of P.W. 6 in cross- examination in paragraph 2 which is the first paragraph of the cross examination, we found from the evidence available to us at page 37 of the paper book that the informant was at all not certain as to who had indeed initiated the proceeding under section 107 of the Code of Criminal Procedure. He has admitted in the above paragraph that he was not knowing as to who had initiated the proceeding under section 107 of the Code of Criminal Procedure. 10. It further appears that he had contradicted his earlier statement in paragraph 1 at page 36 of the paper book that his son had deposed in the proceeding under section 107 of the Cr.P.C. on that particular day and, 7 as such, the occurrence had taken place by stating in cross-examination in paragraph 2 that no witness had really been examined in 107 Cr.P.C. proceeding. Thus, we find that it is at all not safe on account of the confusion created by the evidence of P.W. 7 to reach a conclusion that there could be a particular motive or reason for the accused persons to come armed at the place of occurrence to commit the offence. The other reason which appears from the record which could improbabilize the initial story of the prosecution is the admission of P.W. 7 about the status of the marai and its real proprietor. P.W. 7, in his evidence in paragraph 21 at page 49 of the paper book, has stated that the land over which a marai was standing, belonged to one Lalan Singh of village Sahuka. Thus, it is clearly admitted by him that the marai was not belonging to him though some attempt appears made by P.W. 6 Dayanidhi Pasi to claim the ownership of the Marai when he stated in his paragraph 11 that marai was used by them for keeping livestock there. But, we are at all not inclined to accept the above evidence of P.W. 6 in the light of the very admission of P.W. 7 in paragraph 6 at page 42 of the paper book that there was nothing kept by the informant in the marai except a rope and another thing. Thus, the evidence on the ownership or possession of the prosecution party on the marai also convinces us that they might not have been there on the night of the occurrence as they did not have anything to do with that particular Marai. 11. On considering the evidence further on the manner of occurrence and the place of occurrence, we find that P.W. 7 has stated that when he heard some sound, he came out of the Marai and looked towards east 8 but he did not find anyone. Then he moved towards north and again he did not find any one. Then, he came out of the marai and went into a field which was at knee depth from the level of the marai and there he was assaulted. Thus, according to P.W. 7 he was assaulted south of the marai but what we find from the evidence of P.W. 6 in paragraph 3 is that the informant was assaulted north of the marai. P.W. 6 also stated that there was a Sahan north of the marai and Charitra Pasi was assaulted in that very marai. As regards the assault on the deceased, the evidence of P.W. 5 tells another story that the deceased Banshidhar was assaulted by appellant Baban Singh and Balkeshwar Singh though remaining two witnesses named appellant Saraju Singh and Balkeshwar Singh. 12. These are some the reasons and above contradictory in the statement of witnesses which convinces us that it was at all not safe for us to place reliance on the testimony of the witnesses. This situation gets compounded more on account of the non-examination of the doctor who held postmortem examination on the dead body of Banshidhar Pasi. Besides, Dr. R.P. Bhadani who had examined four injured persons in the government hospital and had prepared Exts. 2 to 2/3 was also not produced. We do not know as to what really were the injuries found on the deceased or on the three injured witnesses. We are not sure to record a finding that indeed the injuries were corroborating the manner of occurrence as was narrated by P.Ws 5, 6 and 7. Besides the above, the investigating officer of the case was also not examined. This leaves the place of occurrence to be established as per the claim of the prosecution. 9 13. Apart from the above, after considering the evidence which was brought by the prosecution on record, we find that the judgment, finding the appellants guilty on various counts, was not sustainable under the facts of the case. The appellants, thus, deserve to be acquitted on account of being given the benefit of doubt. We allow the appeal by setting aside the judgment and order of conviction and sentence inflicted individually upon the appellants. 14. We find from the records that eight appellants were granted bail by order dated 27.5.1988 and that order does not bear the name of appellant Balkeshwar Singh. Learned counsel for the appellants has informed us that for whatever reasons or may be on account of inadvertence the said appellant has also been released by the trial judge on bail. On account of release of all the appellants on bail, we direct that they and their sureties shall stand discharged from their respective bonds. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 15th April, 2010, NAFR/Anil/