Criminal Appeal No. 326 of 2004 (D.B.) **** Against the judgment, dated 20.02.2004, passed by Additional Sessions Judge, Fast Track Court, I, Aurangabad, in Session's Trial No. 56 of 1999/64 of 2003 **** Ahmad Ali, son of Ganauri Mian, resident of village Nehuta, P.S. Aurangabad (Mufassil), district Aurangabad .. Appellant Versus The State of Bihar .. Respondent **** For the appellant .. Mr. Sajid Salim Khan, Adv. For the respondent .. Mr. Ashwani Kumar Sinha, A.P.P. **** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. The appellant, Ahmad Ali, has been convicted under Section 302 of the Penal Code and has been sentenced to undergo rigorous imprisonment for life. 2. The prosecution case, as alleged in the fardbeyan of the informant, Jitendra Yadav (P.W. 9) recorded at village Biseni at the house of Shabeer Mian on 28.09.1998 at 09.30 p.m. before the Sub Inspector of Police of Muffasil Police Station that his grandfather, Jageshwar Yadav (deceased), aged about 75 years used to sleep in the 2 house of Shabeer Mian as Shabeer Mian used to live at Aurangabad and the house was vacant. Further, the case is that on 28.09.1998 at 11.00 p.m. said Jageshwar Yadav after taking his meal went to the house of Shabeer Mian as usual and at 01.00 p.m. Susheel Pal (P.W. 4), Sunil Paswan (P.W. 6), Guna Sain (not examined), Rajdeo Pal (P.W. 3) made a hulla that one person of Nekta has assaulted Jageshwar Yadav by sword in the house of Shabeer Mian and is fleeing away. On the said hulla several people of the village collected and along with them the informant also ran to catch hold of the accused. Further, case is that all the persons chased the person to village Nekta and the said assailant entered into his house and closed the door. The prosecution party, however, surrounded the said house and disclosed the villagers of Nekta that the person has fled away after murdering Jageshwar Yadav then the villagers of village Nekta asked to call Dafadar and Chowkidar only then the door of assailant be opened. The informant and others sent one Shyam Lal Pal in the adjoining village Redia to call Dafadar and Shyam Lal Pal (not examined) called the Dafadar and before the said Dafadar the door was opened and the said assailant was found having the blood stained sword in his hand. The assailant was identified by the villagers as Ahmad Ali. The said blood stained sword was handed over to Dafadar, Mohiuddin (nod examined) and, thereafter, the informant returned, found several injuries on face and neck on the person of Jageshwar Yadav by sharp cutting weapon and is dismer with blood and has already died. It has further been stated that there is no motive for the occurrence. 3 3. On the fardbeyan of the informant first information report lodged and after investigation the charge sheet was submitted. The occurrence is dated 28.09.1998, the fardbeyan was also recorded on the same date and the first information report has been lodged on 29.09.1998 at 04.00 p.m. On submission of the charge sheet the cognizance was taken on 25.11.1998 and, thereafter, the case was committed to the Court of Session on 08.04.1999. 4. After commitment of case the charge was framed under Section 302 of the Penal Code against the appellant for allegedly committing the murder of Jageshwar Yadav. Out of the framing of the charge eleven witnesses were examined, who are P.W. 1, Md. Shamim, P.W. 2, Sajid Khan, P.W. 3, Rajdeo Bhagat, P.W. 4, Sushil Pal, P.W. 5, Sattan Ram, P.W. 6, Sunil Pal, P.W. 7, Shivnandan Yadav, P.W. 8, Kamlesh Pal, P.W. 9, Jitendra Yadav, P.W. 10, Dr. Nawal Kumar, Medical Officer, Primary Health Centre, and P.W. 11, Mazhar Alam, a formal witness, who has formally proved the fardbeyan, the formal first information report, inquest report, seizure list and paragraphs 1 to 58 of the case diary. 5. The documentary evidence adduced on behalf of the prosecution. Exhibit 1 is the signature of the witness, Shamim, on the inquest report, Exhibit 1/1 signature of witness, Sajid Khan, on the inquest report, Exhibit 2 signature of the witness, Kamlesh Pal, on the seizure list, Exhibit 2/1 is the seizure list of the blood stained earth, Exhibit 3 is the signature of Kamlesh Paswan on the seizure list of the soil, Exhibit 3/1 is the seizure list, Exhibit 4 is the signature of Jitendra Yadav on the fardbeyan, Exhibit 5 is the injury report, Exhibit 6 is the 4 fardbeyan, Exhibit 6/1 is the formal first information report, Exhibit 7 is the signature of the doctor on the post mortem report, Exhibit 8 is the case diary. After the closure of the evidence the statement of the accused recorded under Section 313 of the Criminal Procedure Code. 6. On considering the oral and documentary evidence and the submission by the parties the order of conviction and sentence has been passed as stated at the outset. 7. However, the defence of the accused person is that the witnesses have not seen the occurrence and no sword were seized by the prosecution. The said Ahmad Ali is mad and was treated at Ranchi and the witnesses have deposed falsely about the occurrence as are not the eye witness. 8. The learned advocate, Mr. Sajid Salim Khan, appears on behalf of the appellant and submitted that most of the witnesses in the case has declared hostile and has not supported the prosecution and the informant and other witness who have come to support the prosecution case claim themselves to be the eye witnesses whereas they are really not the eye witnesses and attention has been drawn to the earlier statement before the police and even about the fact what they stated before the police. However, the investigating officer has not been examined to take the contradiction from the witnesses’ prosecution. However, non-examination of the investigating officer caused prejudice to the accused person as the witnesses, including the informant, who claims themselves to be the 5 eye witnesses have not stated so in the fardbeyan itself about the eye witness and even attention drawn regarding the evidence adduced by them claiming to be eye witness and even their earlier statement before the police has been brought by way of suggestion. It has further been contended that appellant was a mad and even at the stage of trial this fact found, which is apparent from the record itself and drawn the attention of page 11, a letter of the State of Bihar to all the Superintendents of Jail/District Jail/Sub Jail to transfer all the prisoners who are mentally ill be sent to Ranchi Mental Hospital and on the said letter there is endorsement about recommendation for sending him to mental hospital. The order, dated 31.08.2009, however, specifically mentions that the Superintendent Jail, Aurangabad, has written a letter for sending this appellant for treatment to Sadar Hospital to Aurangabad to Ranchi Mental Hospital. A copy of the letter of the learned lower Court is at page 16 of the lower Court records that in the month of January, 1999, he has been recommended and even advised to be sent to Mental Hospital, Kanke, Ranchi. 9. The learned counsel for the State contended that the prosecution has been able to prove the charges leveled against the person beyond reasonable doubt. 10. Now I proceed to consider the evidence in the light of the submission made and defence case as apparent from the suggestion. However, prosecution case as alleged in the fardbeyan of the informant that the grandfather of the informant went to the house of Shabeer Mian after taking meal as usual and about it he heard the sound of hulla that one person of Nehuta is fleeing away after assault Jageshwar Yadav 6 (deceased) and it is alleged that the villagers and the informant chased him to village Nehuta and the accused entered into his house and closed the door from inside and, thereafter, the villages surrounded the house and on the advice of the villagers of village Nehuta to call Dafadar and Chowkidar and Shyamlal (not examined) sent to call the Dafadar and then Dafadar, Mohiuddin (not examined) was called and before Mohiuddin the door was opened and the accused was apprehended with the blood stained sword in his hand and the identification of the accused was made as Ahmad Ali, however, in the fardbeyan it has been stated that Sushil Pal (P.W. 4), Sunil Paswan (P.W. 6), Guna Sain (not examined), Rajdeo Pal (P.W. 3) made a hulla on which several people collected and with those several people this informant also chased to caught the accused. 11. However, P.Ws. 1, 2, 3, 4, 5 and 6 have been declared hostile as has not supported the prosecution case. However, P.W. 1 has stated that he does not know about the murder of Jageshwar Yadav. P.W. 2 also in same and similar manner stated that he does not know about the murder of Jageshwar Yadav. P.W. 3 also stated that he does not know anything about the occurrence. P.W. 4 has also stated that he does not know about the death of Jageshwar Yadav. P.W. 5, Sattan Ram, stated that on 28.09.1998 Dafadar gave the sword to Daroga at the door of Sabeer Mian and at that time he was not there and he is illiterate. In his cross examination he has stated that he learnt that Ahmad Ali has assaulted and injured Jageshwar Yadav by sword, hence, this witness has not come forward to support to support prosecution case and whatever he stated that he learnt about the 7 handing over the sword by Dafadar to Daroga and, hence, has not come forward to support the prosecution about the seizure of sword from the accused. P.W. 6 is Sunil Paswan. He has also stated that he heard that Jageshwar Yadav has been killed by sword and has stated that he has not seen. This witness has also been declared hostile. 12. However, it is pertinent to mention that prosecution, as alleged in the fardbeyan by the informant that at about 01.00 p.m. Sushil Pal (P.W. 4), Sunil Pal (P.W. 6), Guna Sain (not examined), Rajdeo Pal and others make a hulla about the assault on Jageshwar Yadav by a person of village Nehuta on which several people collected and chased. However, P.Ws. 4, 3 and 6 have not come forward to support the prosecution case about this part of the prosecution case. 13. P.W. 9 is the informant himself. However, P.W. 9 has stated in his evidence that Jageshwar Yadav, his grandfather, use to live in the Baithka of Shabeer Mian, went out from his house at about 11.00 p.m. to sleep in the Baithka of Shabeer Mian. He has further stated that his grandfather said in the Baithka of Shabeer, Ahmad Ali at 01.00 p.m. came along with the sword and assaulted his grandfather at his neck and on seeing it he made hulla and after cutting the neck Ahmad Ali started fleeing away and there Rajdeo Pal (P.W. 3), Sushil Pal (P.W. 4), Sunil Paswan (P.W. 6), Sattan Ram (P.W. 5), Sajid Khan (P.W. 2) collected there and on hulla they started chasing and then reached to village Nehuta and, thereafter, the said accused entered into his house and closed the door and on having disclosed that he is fleeing away after murdering his grandfather and then the villagers asked to call Dafadar and Shyam Lal was sent who returned with the Dafadar, 8 Mohiuddin, and, thereafter, in presence of Dafadar the door was opened and then saw Ahmad Ali sitting with the blood stained sword and Dafadar took the accused and the sword in his possession. He has further stated that Dafadar came in the village where he recorded his statement and after well reading and understanding the fardbeyan he singed which has been marked as Exhibit 4. He has further stated that Daroga seized the blood stained earth and sword before him. He has further stated that when his grandfather went to the house of Shabeer Mian and he sat near the Masjid where Kamlesh, Sushil and 10-15 persons were there and while they were near Masjid when occurrence took place. He has stated that all of them went to the verandah and at that time the accused persons was assaulting his grandfather and on seeing them he started brandishing the sword. He stated that his grandfather made hulla for the first and on hulla all the persons rushed. He has further stated that they out of fear did not go near his grandfather. He has further stated that the accused person was assalting his grandfather by cutting over the chest of the deceased, but, the prosecution party did not try to catch hold of the deceased out of fear of their lives. However, he denied the suggestion that Ahmad Ali is mad and was treated at Ranchi. However, attention has been drawn and it is stated that it is not a fact that he has stated before the police that Ahmad Ali came along with the sword at 01.00 a.m. and started cutting the neck of his grandfather Jageshwar Yadav and, thereafter, he saw and made hulla and accused person started fleeing away after cutting the neck and Daroga neither took the blood stained earth or blood stained sword seized there. However, this witness claims to be eye witness and 9 he is also the informant. The fardbeyan has been recorded by the police on which he has proved his signature, but, the prosecution case, as alleged that on the hulla of Sushil Pal, Sunil Paswan and Rajdeo Pal the accused started fleeing away after assaulting the deceased by sword on which several people collected and he also ran to catch the accused. However, there is no mention in the fardbeyan about his seeing the occurrence or making hulla by him on the scene of the occurrence by this witness and, hence, about his being an eye witness to the occurrence is quite contrary to the fardbeyan which was recorded on his statement. Even the defence has drawn the attention about his statement to the police and the investigating officer has not been examined which has caused prejudice to the prosecution. However, the case diary marked as Exhibit 8 in the further evidence recorded in paragraph 5 of the case diary it is specifically mentioned that at the time of occurrence he was sleeping in his house and on hulla he along with covillagers, Sattan Ram, Sajid Khan, Samir, Jamuna, Basant and others chased the said accused and, hence, his evidence in Court about his being an eye witness to occurrence of assault is contradictory to his earlier statement in the fardbeyan as well as statement recorded under Section 161 of the Criminal Procedure Code before police and on perusal of the case diary I am satisfied that the evidence, of this witness not an eye witness to the occurrence, is contradictory to his earlier statement before the police in the fardbeyan. Hence, in his further statement he is said to have seen the accused, Ahmad Ali, to have assaulted the deceased with sword. 10 14. P.W. 8 has stated in his evidence that Ahmad Ali assaulted Jageshwar Yadav by sword to murder and Ahmad Ali, thereafter, started fleeing away and he chased him. He has further stated that after opening the door Ahmad Ali was caught along with the blood stained sword and Daroga seized the blood stained earth and has proved his signature on the seizure list and also proved the seizure list prepared by Chandeshwar Prasad Singh, Sub Inspector of Police, which has been marked as Exhibit 2 and has also proved the seizure list prepared by Daroga which has been marked as Exhibit 3 which bears his signature. However, in the cross examination he has also denied this allegation that Ahmad Ali was mad and was treated at Ranchi for the mental illness. However, attention has been drawn to his statement about his being eye witness before the investigating officer not examined, but, case diary proved non-examination of the investigating officer prejudice the defence looking into case diary suggest that this witness is not the eye witness nor the accused handed over the sword to Daroga by accused. However Exhibit 2 is the seizure list with regard to seized blood stained earth and Exhibit 3 is the blood stained sword. However, this seizure list is the production-cum-seizure list, but the seizure list suggests that the said sword was presented by Dafadar, Syed Mohiuddin, to the Daroga. The statement of this witness is recorded in paragraph 16 the case diary. However, on perusal of case diary apart that evidence of this witness about his being eye witness and seizure of sword from accused is quite contradictory with his earlier statement before police and not reliable to accept it and his evidence is contradiction as a vital omission on the part of this witness 11 having not stated this fact in his statement before police, but, claiming to be the eye witness during the trial. In the case diary he is only a witness to the seizure list regarding the Daroga collecting the blood stained earth and preparing a seizure list of the sword on being produced and presented by the Dafadar, Syed Mohiuddin. Strongly this fact has not been stated by the witness, hence, the reliance on the evidence of this witness there on two facts about his being seen the occurrence of assault by the accused, Ahmad Ali to the decease, Jageshwar Yadav about Ahmad Ali caught with sword is not reliable, hence, on these two facts the evidence of this witness having not stated before police this fact is a vital omission amounts to contradiction. Hence, his evidence about eye witness to occurrence and accused caught with sword is not acceptable. 15. P.W. 7 is Shiv Nandan Yadav, who is son of Jageshwar Yadav (deceased). He has stated that at 12.00 p.m. to 01.00 a.m. he heard that Ahmad Ali is assaulting his father by sword and then he made hulla and then Ahmad Ali started fleeing away and then he chased Ahmad Ali and Ahmad Ali reached village Nehuta and, thereafter, Dafadar and Chowkidar were called and after opening the door it was found that Ahmad Ali was sitting along with sword and, thereafter, Dafadar and Chowkidar catch hold of Ahmad Ali and, thereafter, Ahmad Ali was caught by Dafadar and Chowkidar and then returned back to his house. However, he stated that his father has gone out after taking meal as usual. Further attention of this witness has been drawn and has stated that his statement was recorded by the police and has stated before the police that about 12.00 p.m. to 01.00 a.m. he 12 was at his house and was going to defecate then saw Ahmad Ali assaulting his father by sword and on hulla Ahmad Ali started fleeing away and the villagers started chasing and then Ahmad Ali went to village Nehuta and Dafadar and Chowkidar caught Ahmad Ali along with the sword and Ahmad Ali was handed over. This witness has further stated in his cross examination that it is not a fact that in fact has stated before Daroga that at the time of occurrence he had gone to Aurangabad and while returning when reached at village Besaura then co-villager, Sudama Paswan, told him that Jageshwar Yadav has been killed by Ahmad Ali by sword. However, the attention has been drawn to his statement before the Court as brought by suggestion what he has actually and factually stated before the police and the investigating officer has not been examined in this case and this has caused prejudice. However, paragraphs 1 to 58 of the case diary has been marked as Exhibit ‘8’ and the evidence of this witness in paragraph 29 of the case diary where he stated what has been suggested by the prosecution and denied by him that is not a fact. However, in paragraph 29 of the case diary the statement of this witness recorded by investigating officer during investigation in which he stated that it has been specifically mentioned that he had come to Aurangabad and reached village Basain More then he met Sudama Paswan, who disclosed that Ahmad Ali has killed Jageshwar Yadav, the father of this witness by sword and then on this information he came to the house and, hence, in these facts the claim of this witness to be the eye witness is highly suspicious and his evidence is quite contrary to his earlier statement before the police. 13 16. P.W. 10 is the doctor who has done autopsy on the person of the deceased and found eleven injuries on the person of the deceased by sharp cutting weapon. However, the death of the deceased by the sword is not disputed, but, the question whether the prosecution has not been able to prove the charges. However, Exhibits 6, 6/1, 7, the inquest report, the seizure list, Exhibits 2/1and 3/1has been formally proved. Exhibit 2 was the seizure list with regard to the blood stained earth and Exhibit 3/1 is production-cum-seizure list of the sword which is stated to be the presented by Dafadar to the Daroga. 17. Taking into consideration the entire evidence P.Ws. 1 to 6 has not come forward to support the prosecution case and have been declared hostile by the prosecution. P.W. 9 is the informant, who is the grand son of the deceased and P.W. 8 is the son of the deceased and they are interested witnesses, however, both of them claimed to be eye witnesses during trial and deposed to have seen the occurrence, but, the attention has been drawn with regard to those part of the evidence claiming to be eye witness and have been challenged and even attention drawn with regard to their statement to the police, before the Court as well as what they stated before the police though investigating officer has not been examined, but, the case diary has been marked as Exhibit 8 and, hence, going to the case diary for satisfaction I am satisfied that the evidence regarding of being eye witness is contradictory to his earlier statement before police what they stated before the police in their further statement during investigation as well as in the fardbeyan of the informant, P.W. 9 and P.W. 8 also suffers from contradiction regarding their being the eye witness to the occurrence which has been 14 discussed above and, hence, the evidence regarding the fact about P.Ws. 7, 8 and 9 claims to be the eye witness to the occurrence is highly suspicious and non-examination of the investigating officer has cause prejudice to the occurrence on these points and, hence, those part of the evidence of these three witnesses for being eye witness to the occurrence is neither reliable nor trust worthy or worthy of confidence and suffer from contradiction to their earlier statement and, hence, can not be relied upon to prove the prosecution case on those part of evidence and, hence, I am of the considered opinion that these witnesses are not the eye witness to the occurrence. However, the prosecution case that they chased the accused when they heard hulla after the occurrence and where the prosecution case that the accused was recovered form his house along with sword and he was handed over to Dafadar and Dafadar presented the said sword to the investigating officer and for which the production-cum-seizure list has been prepared. However, Exhibit 3/1 is the production-cum-seizure list of the said sword was handed over by Dafadar, Syed Mohiuddin to the investigating officer. However, there are two witnesses to this production-cum-seizure list, one is Kamlesh Pal and the order is Sattan Ram. However, Sattan Ram has been