CRIMINAL APPEAL No.243 OF 1988 (DB) With CRIMINAL APPEAL No. 354 OF 1988 (DB) Against the judgment of conviction and order of sentence dated 10th May, 1988 passed in Sessions Trial No. 18 of 1983 by Sri N.C. Lala, 2nd Additional Sessions Judge, Patna ********** 1. BARHU GOPE SON OF LATE RAM SHARAN GOPE, RESIDENT OF MOHALLA- NAYA GAON, MUSALLAHPUR, P.S.- PIRBAHORE, DISTRICT- PATNA . .................................. ....APPELLANT (Cr. Appl. No. 243/88) 2. SURAJ GOPE SON OF SAKALDEEP GOPE, RESIDENT OF MOHALLA- NAYAGAON, MUSSALLAHPUR, P.S.- PIRBAHORE, DISTRICT- PATNA ………………………….APPELLANT (Cr. Appl. No. 354/88) VERSUS THE STATE OF BIHAR ………………………..……RESPONDENT *************** For the Appellants :-Mr. Rakesh Kumar Sinha, Advocate Mr. Anuj Prakash, Advocate For the State :-Ms. 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. Both the above mentioned appeals have arisen out of one judgment so both have been heard together and are being disposed of by this common judgment. 2. The above named appellants have preferred these appeals against the judgment of conviction and order of sentence dated 10th May, 1988 passed by the learned 2nd Additional 2 Sessions Judge, Patna in Sessions Trial No. 18 of 1983 whereby and whereunder both the appellants were convicted under Sections 302/34 of the Indian Penal Code and were sentenced to undergo imprisonment for life. Though another accused Sakaldeep Gope, who was also tried along with both the appellants, was acquitted on the ground that he was not named in the FIR and subsequently his name was dragged on the basis of the statement of PWs 6 and 7. 3. For considering the grounds of appeal, it is necessary to trace the prosecution case in brief. The prosecution case started rolling from the fard-beyan of Laxminia Devi (PW 7) recorded by ASI, Ganesh Pandey (PW 8) of Pirbahore Police Station of Patna District on 26.5.1982 at 12.15 A.M., at the door of the informant PW 7, to the effect that at about 10.30 P.M. the informant’s son Ashok Rai (deceased) was taking rest at his door on a cot where the informant (PW 7) was standing. In the mean time Suraj Gope (appellant), his uncle Garshukwa, the brother of the informant Barhu Gope (appellant) came and they started dragging the informant’s son, Ashok, where all the three caught hold of the victim and gave a dagger blow on the left lower side of the abdomen, as a result of which the victim fell down and died on the spot. It is claimed by the informant that at the place of occurrence her husband Sheo Persan Rai (PW 6), neighbour Ram Kishun Paswan (PW 3), Ram Nagina Paswan (not examined), Ram Patiya Devi (PW 2), wife of PW 3, and Janakiya Devi (PW1) and several 3 people of Mohalla were present who witnessed the occurrence. Informant and others took the victim to Patna Medical College and Hospital in Surgical Emergency Ward, where the doctor declared the victim dead and advised to take the victim home and then the victim was brought home and the dead body was kept at the door. It is also alleged that one knife of the accused persons was also left lying at the place of occurrence. The reason of the occurrence is alleged to be the habit of consuming liquor by the three accused persons, which was opposed by the deceased. Hence, all the three accused persons, with common intention, have killed the informant’s son. The fard-beyan of the informant led to registration of the Pirbahore P.S. Case No. 127 dated 26.5.1982 under Sections 302/34 of the Indian Penal Code at 3.30. AM (Ext. 3). Brij Mohan Prasad (PW 4) and Ramdev Yadav (PW 5) were the attesting witnesses to the fard-beyan (Ext. 2). 4. The police, after investigation, submitted chargesheet against four accused persons, namely, Suraj, Barhu, Sakaldeep and Chandradeep @ Garshukhwa. Subsequently Garshukhwa @ Chandradeep died, hence only three accused persons were put on trial, namely, Suraj, Barhu and Sakaldeep. Charges were framed under Sections 302/34 of the Indian Penal Code against all the three accused persons. 5. Prosecution, in order to prove its case, examined nine witnesses, out of which PW 1 Janakiya Devi, PW 5 Ramdev Yadav claimed themselves as hear say witness because they reached at 4 the place of occurrence after the commission of the occurrence. 6. PW 2, Rampatiya Devi, has specifically stated that PW 7 did not name any accused person and has been declared hostile. PW 3, Ram Kishun, deposed that he saw the accused persons dragging the victim but has not supported the fact that he came to know about the manner of occurrence, particularly, the name of the accused persons, hence, both, PWs 2 and 3, have been declared hostile. 7. PWs 4 and 5, Brij Mohan Prasad Chandrawansi and Ram Deo Yadav, respectively, are witnesses to the fard-beyan, inquest and seizure list. Both witnesses reached the place of occurrence where nobody was available and subsequently they saw PWs 6 and 7, bringing the victim on Rickshaw. 8. PW 6-Sheo Persan Rai, the husband of PW 7- Laxminia Devi (the mother of the victim), claims himself to be the eye witness to the occurrence. PW 8- Ganesh Pandey claims himself to have made a Sanha Entry on the basis of telephonic information regarding the occurrence and thereafter he reached at the place of occurrence and recorded the fard-beyan, prepared the inquest and seizure and conducted the investigation of the prosecution case. 9. PW 9- Chandeshwar Prasad, the peon posted in the Forensic Medicine Department in PMCH, proved the post mortem report (Ext. 6) because Dr. R. B. Chaudhary who conducted the post mortem on the dead body of the deceased, died prior to the 5 commencement of trial. 10. Defence has also examined four witnesses, out of which DW 1 is Shashi Bhushan Prasad Sinha, DW 2 is Mundrika Paswan, DW 3 is Hari Nandan Yadav and DW 4 is Suraj Narayan. All the defence witnesses have tried to prove the alibi of accused Suraj and Barhu Gope, to the effect that on the date of occurrence, Suraj Gope returned after getting married and Barhu Gope had gone to Sasural since his wife was ill. DW 2, claims himself to be the brother of first wife of PW 7 and has tried to prove that PW 7 has two sons- the victim and one Lallan and Lallan died due to illness. 11. Learned trial court relying on the evidences of PWs 6, 7 and 8, has come to the conclusion that they have proved the prosecution case beyond the shadow of all reasonable doubts and hence, recorded the judgment of conviction against both the appellants whereas acquitted the another accused Sakaldeep on the ground that he was not named in the FIR and his name was subsequently roped in by PWs 6 and 7. Hence, the prosecution failed to prove charge against Sakaldeep. 12. Now, on the grounds taken by the appellants in appeal, this Court has to see as to whether the evidences of PWs 6 and 7 are credit worthy enough for non-interference with the impugned judgment. 13. The death of the informant’s son, Ashok, on 25.5.1982 at about 10.30 PM is an admitted fact. The prosecution 6 had only to prove the manner of occurrence, place of occurrence and identification of the accused persons on the alleged date of occurrence. 14. Initially, case of the informant in the fard-beyan is that all the three FIR named accused persons, namely, Barhu, Suraj Gope and Garshukwa @ Sakaldeep (since dead) dragged the victim in front of the door of the informant and stabbed him to death. There is no specific allegation with regard to overt act against any one, with regard to assault. It is further claimed by the informant in the fard-beyan that the occurrence was witnessed by PWs 1, 2, 3, 6 and one Ram Nagina Paswan (not examined). Subsequently, the informant specified the overt act against Barhu Gope, but the manner of occurrence is not corroborated by the independent witnesses, as PW 1 in paragraph 1 of her evidence has claimed to wake up on the alarm of PW 7 and then she went to the door of the informant, where she saw the dead body of the victim. When PW 7 accompanied her in presence of PW 6, the name of the assailants, namely, Suraj, his father and the uncle were disclosed to her. 15. PW 1, in paragraph 2 of her evidence, has specifically stated that she could not see any assailant. Hence, the evidence of PW 1 does not help the prosecution to prove the manner of occurrence, rather it clouds the credibility of the informant who suggested in fard-beyan that PW 1 also saw the occurrence. 7 16. PW 2 also claims to have awakened on the alarm of PW 7, about his son being killed, when this witness saw the dead body of Ashok on her door. This witness has stated that PW 7 did not name any accused person. Though this witness has been declared hostile, but this part of evidence that the dead body was at the door of PW 2, gets corroborated with the evidence of Investigating Officer (PW 8), who, in paragraph 13, has specified that dead body was found 5-6 feet south to the door of PW 2. It is relevant to mention here that PW 8 in paragraph 4 has stated that the alleged place of occurrence ‘lane’ is 7 feet wide north to south while the house of PW 2 is in the north. Hence, evidence of this witness also clouds the claim of the informant (PW 7) that she witnessed the entire occurrence. 17. PW 3 had also not seen the occurrence and has failed to depose even as a hear say witness and has been declared hostile. Though PWs 4 and 5 are the witnesses to the fard-beyan, inquest and seizure but they are the post occurrence witnesses. Hence, so far as the manner of occurrence is concerned, the prosecution has relied on the evidences of PW 6 and 7. PW 6 claims to be the second husband of the informant though their relationship has been suggested by the defence to be an illicit one. 18. PW 6, in paragraph 3 of his evidence, has claimed to have seen the occurrence while taking food in the courtyard when the deceased Ashok was lying on a cot in front of the room of Barhu. PW 6 was three hands south from the cot of the victim and 8 in the mean time Sakaldeep, Barhu, Chandradeep and Suraj dragged the victim in the lane towards north, when Sakaldeep, Chandradeep and Suraj caught hold of the victim and Barhu gave a dagger blow in the left lower portion of the abdomen but by the time PW 6 reached there, the accused persons fled away. 19. PW 7 described the manner of occurrence in paragraph 1 of her evidence. She has stated that the victim was lying down in the courtyard on the cot near the door of south northern room when PW 6 was taking food, south to the cot of the victim, then Chandradeep, Suraj, Sakaldeep and Barhu came, dragged the victim in the lane. Sakaldeep, Chandradeep, Suraj caught hold of the victim and Barhu gave a dagger blow on the left lower portion of the abdomen. 20. The presence of PW 6 becomes doubtful by the evidence of PW 7 in paragraph 1 where she stated that after the assault, PW 7 raised alarm then PWs 2, 3, Nagina Paswan (not examined), and PW 6 reached the place of occurrence. The claim of PW 6, of having seen the occurrence, becomes doubtful in view of the fact that he was in the courtyard and the actual assault was made in the lane. The evidences of PW 6 and 7 with regard to manner of assault, further becomes doubtful in view of the fact that PW 7 recorded the fard-beyan at 12.15 AM on 26.5.1982, whereas the occurrence is alleged to have taken place at 10.30 PM on 25.5.1982, but in the fard-beyan there is a general allegation that three accused persons assaulted the victim. Hence, it appears 9 that PWs 6 and 7 had ample opportunity to give the name of the assailants in the First Information Report but specifying the assault of dagger blow during the evidence creates doubt about the credibility of the informant. 21. It is true that the FIR cannot stipulate every minute details of the occurrence but it is expected that First Information Report briefly states the time, the place and the basic manner of occurrence, but since the victim received only one injury and that too was not mentioned in the fard-beyan, it creates doubt about the bona fide of the informant. The consistent case of PWs 6 and 7 is that the victim was dragged from the door to the lane, as PWs 6 and 7 in paragraph 1 of their respective depositions have specifically claimed that the victim was dragged from the door to the lane and the evidence of PW 8 suggests that the distance between the door of the victim is about 7-8 feet though it has not been specifically mentioned by PW 8 in the case diary, which becomes apparent from his evidence in the paragraph 16 of his evidence, but no dragging injury has been found by the doctor who conducted the post mortem which has been brought on record as Ext.-6. The doctor could not be examined in the case diary. Hence, on this score also, the manner of occurrence, as alleged by PWs 6 and 7, does not inspire confidence and the prosecution has failed to prove the manner of occurrence. 22. The defence has made an endeavour to prove that the informant’s first husband was Daroga Rai and after his death 10 the victim started residing with PW 6. Though no proof of marriage of PW 6 was brought on record rather PW 6, in paragraph 8, has stated that he had not divorced the first wife till date. This fact was not being liked by accused Barhu, who is the brother of PW 7. The evidence has also come on record to suggest that the informant has another son, namely, Lallan, from her first husband who died due to lack of treatment. This fact has been stated by PW 1 in paragraph 4 of her evidence wherein PW 1 has stated that PW 7 was married to Daroga Paswan with whom two sons were born one was Ashok and another was Pappu, who also died and after death of Daroga Paswan, the victim started residing with PW 6. 23. PW 3, in paragraph 4 of his evidence, has clearly stated that PW 6 did not want to keep the deceased with him and they used to quarrel on a regular basis. The suggestion has also been given to this effect to PW 6, but that has been denied. PW 6 has been examined to prove this fact that PW 7 (informant) was married with Daroga Paswan and his two sons were the Ashok and Lallan. Hence, in the background of such relationship of PWs 6 and 7, it is difficult for this Court to put reliance on their evidences, particularly in view of the fact that PW 6, in paragraph 11 of his evidence, has stated that the house was constructed by his first husband. Though the suggestion has been given to PW 6 in paragraph 15 and to PW 7 in paragraph 23 that it was house of Barhu in which PWs 6 and 7 were residing. Barhu in his statement under Section 313 Cr.P.C. has claimed the house to be 11 his own and that is the definite case of the defence that it was PWs 6 and 7 who killed the victim in order to grab the property and such suggestion was given to PW 6 in paragraph 28 and PW 7 in paragraph 25 of their cross-examination. 24. The presence of PWs 6 and 7, at the place of occurrence, also becomes doubtful due to inconsistencies appearing in their evidence as PW 6, in paragraph 16 of his evidence, stated that he raised no alarm when he saw the assailants catching hold of the deceased and that alarm was raised only when the deceased was stabbed, while at the same time he has stated that PW 7 raised alarm when the assailants caught hold of the deceased. In paragraph 17 he has specifically admitted that he made no attempt to catch hold of the accused and in paragraph 21 of his evidence, has also admitted that no information was given by him to police and in paragraph no. 4 he has stated that the alarm was raised by PW 7. This conduct on behalf of PWs 6 and 7, being the father and mother of the victim is not only unreasonable but unbelievable also. There is nothing on record to suggest that the victim was taken to PMCH. Though it was suggested by PW 6 and PW 7, that the victim was taken to PMCH in emergency ward but it is surprising that PWs 6 and 7 were allowed to take back the dead body without registering the case and the FIR was only registered when the police came on a telephonic information. 25. PW 8, in paragraph 1 of his evidence, has admitted 12 that the telephonic information about the death of the victim was received, on the basis of which a Sanha entry was made but Station Diary entry has not been brought on record nor the Investigating Officer has made any effort to identify, as to who informed the police. This suppression and withholding of the matter lends credit to the defence version that the Sanha entry was made but the names of the accused persons were not disclosed, but since the manner of occurrence has been changed in the F.I.R., that was the reason of withholding the exhibition of Sanha Entry. 26. So far as the place of occurrence is concerned, it is the specific case of PW 1, in paragraph 1, that she saw the dead body in the house of the informant. PW 2 in paragraph 1 has suggested that the dead body was at her door which was 7-8 feet away from the door of the victim. PW 8 in paragraph 16 has stated that blood was found 7-8 feet away from the door of the informant. PW 6 in paragraph 3 has stated that the lantern was kept near the place where the deceased was lying on a cot while in paragraph no. 19, he has stated that the deceased fell on the ground where the lantern was kept, meaning thereby that the deceased was killed at his door though he has stated that the victim was dragged in the street by the assailants and then stabbed and similar was the statement of PW 7 but the I. O.-PW 8 has described the place of occurrence in paragraph 4, which is between the house of PWs 2 and 6 where the blood was seen. Hence, inconsistencies with 13 regard to the place of occurrence is writ large in the prosecution evidence. 27. PW 8, in paragraph 4, has stated that he collected the blood stained earth from the place where the dead body was found, but in paragraph no. 17, he has stated that it was not transmitted for chemical examination. PW 6 in paragraph 22, PW 7 in paragraph 19 have stated that the blood stain was there on the cloth of PWs 6 and 7, but the Investigating Officer did not take those cloths. The perfunctory investigation by the Investigating Officer also creates hole in the prosecution case as it is admitted case of PWs 6, 7 and 8 that the knife was recovered from the place of occurrence but neither the blood stained knife was sent for examination nor it was produced in the Court and the blood stained cloth of the deceased was also not seized. The specific case of PWs 6 and 7 is that the lantern was burning at the place of occurrence but the Investigating Officer has not seized any lantern nor the I. O. was conveyed about the presence of the lantern, when the I.O. visited place of occurrence. Moreover, PW 2 in paragraph 4 has specifically stated that the night was dark and there was no light at her door. Since the occurrence is alleged to have taken place at 10.30 PM in the night, the prosecution has also failed to prove the source of identification. 28. So far as the motive part is concern, it is alleged by PW 6, in paragraph 6, and PW 7, in paragraph 6, of their respective depositions that the accused persons used to sell illicit 14 liquor from the room of Barhu, which was objected by the informant which led to the occurrence but nothing has been brought on record to prove the motive except an Excise Act Case, which was alleged to have taken place on 12.9.1985, whereas the present occurrence is of 25.5.1982. The motive as alleged, gets falsified in view of the evidence of PW 8, in paragraph 21 of his evidence that PW 6 never conveyed him regarding the alleged motive. Hence, in view of the aforesaid fact, it appears that the prosecution has not been able to prove the motive at all. 29. The prosecution has failed to produce the material witnesses, as the consistent case of the prosecution is that on the alarm of PW 7, PWs 1 to 5 along with Nagina Paswan reached at the place of occurrence, but the said Nagina Paswan has not been examined. PW 6, in paragraph no. 18, has stated that on the rickshaw of Biltu Paswan, which was driven by Chuthki Paswan, the victim was taken to hospital but he has not been examined nor the Investigating Officer, tried to collect the specimen of blood from the rickshaw. PW 8 in paragraph 20 has stated that the formal part of the FIR was prepared by Raghunath Mahto and Ram Lakhan Singh, the police officials but they have also not come to the court to prove the formal part of the FIR. PW 8, in paragraph 8 of his evidence, has stated that one Kapil Chaudhary was given the dead body for getting the post mortem done but the said Kapil Chaudhary also not come forward to prove the case of the prosecution. 15 30. Since the prosecution has failed to prove the manner of occurrence and no independent witnesses have come forward to corroborate the evidence of PWs 6 and 7, hence, we are not inclined to discus the plea of alibi taken by accused. 31. From the discussions made above, we come to the conclusion that the prosecution has failed to prove its case beyond the shadow of all reasonable doubt. Hence, the judgment of conviction and order of sentence dated 10.5.1988 are set aside. Both the appellants are acquitted from the charges and they are discharged from the liabilities of their bail bonds. 32. As a result, both the appeals are allowed. Patna High Court, Patna Dated 3rd November, 2010 Avin/ N.A.F.R. (Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.)