CRIMINAL APPEAL (DB) No.71 OF 1989 With CRIMINAL APPEAL (DB) No. 86 OF 1989 ----- Against the judgment of conviction and order of sentences dated 23rd, January, 1989 passed by 9th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 99/1988 of 48/1988. ----- 1. SHOBH LAYAK YADAV, SON OF LATE BALJAR YADAV 2. KEDAR YADAV, SON OF CHAI YADAV 3. SHRI KISHUN YADAV, SON OF ISHWAR DAYAL YADAV 4. BHOLA KANU, SON OF MUNI KANU ALL RESIDENTS OF VILLLAGE- JAMSONA, P.O.-SEMRI, P.S.-DAWATH, DISTRICT-ROHTAS. -------------------(Appellants) (in Cr. App. No. 71 of 1989) 1. ASHARAF MIAN, SON OF LATE BULI MIAN 2. RAMAYAN YADAV, SON OF SHRI PRAN YADAV BOTH RESIDENTS OF VILLAGE-JAMSONA, P.O.-SEMRI, P.S.-DAWATH, DISTRICT-ROHTAS. -------------------(Appellants) (in Cr. App. No. 86 of 1989) Versus THE STATE OF BIHAR ---------------(Respondents) (in both the appeals) For the Appellants : Mr. Baxi S.R.P. Sinha, Senior Advocate Mr. Ravi Shankar Sahay, Advocate Mr. Ajay Nandan Sahay, Advocate For the State : Mr. Dilip Sinha APP. ----------- 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. Both the two appeals namely Cr. Appeal No. 71 DB/1989 filed on behalf of appellants namely Shobh Layak Yadav, Kedar Yadav, Shri Kishun Yadav and Bhola Kanu and Cr. Appeal No. 86 DB/1989 filed on behalf of appellants namely Asharaf Mian and Ramayan Yadav have arisen out of one judgment passed by 9th 2 Additional Sessions Judge, Rohtas at Sasaram on 23rd January, 1989 in Sessions Trial No. 99/1988 of 48/1988 whereby all the appellants have been held guilty under Section 396 of the Indian Penal Code. Convicts Asharaf Mian and Ramayan Yadav have been sentenced to undergo rigorous imprisonment for life and rest appellants Sri Kishun Yadav, Shobhlayak Yadav, Kedar Yadav and Bhola Kanu have been sentenced to undergo rigorous imprisonment for eight years. 2. The FIR of Dawath P.S. Case No. 57 of 1986 has resulted on the basis of fardbeyan of Haricharan Chaudhary (P.W.6) recorded by Sub-Inspector Shagir Ahmad (P.W.9). In the fardbeyan given at 8.45 a.m. on 18.06.1987, the informant namely Haricharan Chaudhary (P.W.6) of Village Jamsona has alleged that on the preceding night at 9 p.m. he was sleeping along with his younger brother Sitaram Chaudhary (deceased of the case) after taking dinner. At about mid-night some persons jumped from the southern side of the broken wall of the cattle’s house. The informant woke up. At that time a lantern was giving light. The informant noticed two persons standing near 3 him and others namely Asharaf Mian, Ramayan Yadav, Shobhlayak Yadav and Kedar Yadav were having guns. Sri Kishun Yadav and Bhola Kanu both were having lathi. Shobhlayak Yadav and Kedar Yadav remained standing near the informant who kept mum due to fear. In the meanwhile, the informant noticed Sri Kishun Yadav untying his ox and thereafter, Bhola Kanu was taking the ox. The informant’s younger brother Sitaram Chaudhary woke up and started crying. In the meanwhile, Asharaf Mian and Ramayan Yadav fired from their guns resulting in to death of Sitaram Chaudhary. After hearing sound of gun-firing, villagers Ram Ashish Chaudhary (P.W.1), Beni Madho Tiwary (not examined), Ram Chandra Chaudhary (not examined) etc. came and saw the accused persons escaping. The fardbeyan of the informant was given in presence of Chandrama Chaudhary (P.W.5) and Ram Ekbal Chaudhary (not examined). 3. The case was registered under Section 396 of the Indian Penal Code against six named accused persons. After investigation, police submitted charge-sheet and the case was committed. Charge under 4 Section 396 of the IPC was framed and explained to all the six accused. They pleaded innocence and hence, the trial proceeded. 4. From cross-examination and suggestions given by the appellants, it appears that the defence of the accused was that the deceased Sitaram Chaudhary was not murdered at the place as alleged rather he was murdered while he was committing dacoity at some other place. Later on, his dead body was brought at the place of occurrence and the accused persons were implicated. Further suggestion was that Sitaram Chaudhary was keeping a bomb in his upper pocket which accidentally exploded when Sitaram Chaudhary was returning. The deceased had injuries by the explosion of bomb and there is no allegation at all that any of the accused has used bomb in commission of the offence. 5. In order to prove its case, the prosecution has examined nine witnesses. They are Ram Ashish Chaudhary (P.W.1), Bindhyachal Lal (P.W.2), Raghu Nandan Singh (P.W.3), Gulab Chand Chaudhary (P.W.4), Chandrama Chaudhary (P.W.5), Haricharan Chaudhary (P.W.6), Dr. Devendra Tripathy (P.W.7), Braj Kishore Singh, 5 Constable No. 598 (P.W.8) and Shagir Ahmad (P.W.9). 6. Ram Ashish Chaudhary (P.W.1) is a hostile witness and has not supported any part of the allegation. P.Ws.2 and 3 are witnesses of seizure. P.W.4 is brother of the deceased and P.W.7 is doctor who has conducted autopsy of the dead body of deceased. 7. Before coming to the conclusion, the post-mortem examination report of the deceased is being dealt with. The post-mortem on the person of the deceased was performed on 18.06.1987 by P.W.7 who was posted at Sadar Hospital, Sasaram on the date of the post- mortem examination. The doctor has found multiple lacerated wounds on the face, head, neck and chest wall on various sizes and shapes, varying from 1/4”x1/4”x various depths to 1/8”x1/8”x various depths with charring in front. The nose, mouth, eyes were full of blood clots. Stomach contained four ounces of fluid and blood. No pellet was recovered from the body. The dead body was identified by Constable No. 319 Ram Nagina Pandey (not examined), Chowkidar Sahtu Paswan (not examined) and also Paras Nath Singh (not 6 examined). According to the opinion of the doctor, the death was caused by the explosive injuries. In course of cross-examination, the doctor has further clarified that such injuries which were found on the dead body of the deceased “are not” possible by gun-shot fire. 8. From the nature of injuries as well as on account of the fact that no pellet was recovered, it is apparent that the death was not due to gun shot injury rather it was caused by explosive substances. This fact has come from the evidence of the doctor. Though, opinion of the doctor is not final but from the injuries which the deceased had received on his person, it is apparent that his injuries could not have been caused by gun shot which is the case of the prosecution. 9. The informant Haricharan Chaudhary is the person in whose presence the dacoity was committed. According to the evidence of informant, his brother Sitaram Chaudhary was killed in course of dacoity. At that time, the dacoits entered through the damaged wall of cattle house. At that very time, the informant was sleeping and he woke up after hearing some 7 unusual sound and movement and then he found two persons namely Shobhlayak Yadav and Kedar Yadav near him and at that time a lantern was giving light. Asharaf Mian and Ramayan Yadav went near the informant’s brother who cried, thereafter, Asharaf Mian and Ramayan Yadav fired upon Sitaram Chaudhary. Sri Kishun Yadav took away the ox of the informant with the assistance of Bhola Kanu. According to the informant at the time of occurrence Ahsaraf Mian, Ramayan Yadav Shobhlayak Yadav, Kedar Yadav were having guns whereas Sri Kishun Yadav and Bhola Kanu were having Lathi. After the occurrence, Gulab Chand Chaudhary (P.W.4), Chandrama Chaudhary (P.W.5), Baban (not examined) and Ram Ekbal (not examined) came. From the evidence of the informant, it appears that he is the sole witness of the occurrence and the witnesses named by him have come after the accused persons have left the house (P.W.6, Paragraph-2). Gulab Chand Chaudhary (P.W.4) has stated in his evidence that he went near the place of occurrence after hearing the sound of firing and saw the accused persons in the torch light having guns and lathis. If the evidence of the informant 8 is relied upon then it is apparent that all the witnesses including this witness namely P.W.4 has come after the accused persons have left the place of occurrence. The contradiction in the evidence of informant and the evidence of P.W.4 is apparent from the fact that he has claimed identification of the accused persons in the light of torch but this fact has not been stated at all by the informant who has stated that identification was in the light of a lantern which was giving light. Similarly, P.W.5 has claimed to have arrived at the place of occurrence and has seen the accused persons. According to him, he has seen the dead body of Sitaram Chaudharay and cattle shed (Bailghara) (P.W.5, Paragraph- 1). But this is not the case of the informant either in his fardbeyan or in his evidence that Sitaram Chaudhary ever met Bhola Kanu when he was fired upon, rather the evidence of the informant is specific that the firing was made when Sitaram Chaudhary was sleeping on his own bed. If the evidence of the informant (P.W.6) and (P.W.5) are considered on this aspect then it is apparent that these two witnesses have given quite contradictory 9 version with regard to the lying of the dead body of Sitaram Chaudhary. No doubt, minor contradicts have to be ignored because the perception of each individual varies from one person to another but the prosecution has come with a definite case that firing was at a particular place, then the evidence must come only to that effect that the firing was made when that person namely, the deceased was at one place. Here the two witnesses have given contradictory versions and both versions cannot be read together. Another witness who has claimed to be the eye witness has come and he has been examined as Ram Ashish Chaudhary (P.W.1). He is the only witness of occurrence who has been named in the FIR and rest witnesses who have been brought by the prosecution as witnesses had subsequently come after the occurrence and have not witnessed the occurrence. Ram Ashish Chaudhary has not supported any part of the allegation. He in his evidence has stated that he was sleeping upon the roof of his house and he came to the place of occurrence after hearing the sound of fire and saw Sitaram Chaudhary lying dead in his cattle-shed. He had not seen any dacoits. 10 10. The investigating officer has been examined as P.W.9 he has stated that he has seized some straw piece which was suspectedly having blood stains. There is no evidence at all that the seized straw piece or soil was ever sent for chemical examinations for proving that it contained human blood. The onus was upon the prosecution to establish that it was human blood which was available there. Due to non-finding of this aspect that the blood available on straw was of human being it is difficult to prove that the blood was of a human being and that too of the deceased of the case. This, itself is a circumstance which creates grave doubt on the prosecution version of the occurrence. 11. Learned Lawyer for the appellants has submitted that in view of non production of the lantern or torch which is the source of identification of the accused persons, the entire prosecution case has become doubtful. Reliance has been placed on a judgment reported in 2001 P.L.J.R., 1986 and it has been argued that in that case the source of identification was not produced and on that ground the accused persons were given benefit 11 of doubt. It has also been submitted that definite case of the prosecution was that a lantern was giving light which has not been produced. The prosecution case has further been assailed on the ground that the doctor’s evidence is fatal for the evidence of the prosecution because the death was not in the manner as alleged. 12. Learned Counsel for the State has submitted that the informant being eye witness has fully described the occurrence that his brother was murdered by the appellants and that murder was committed in course of commission of dacoity so charge against the appellants under Section 396 of the Indian Penal Code has been proved. 13. After hearing learned Counsel appearing on behalf of the appellants as well as State and after going through the entire records, it appears that the case is based on the sole testimony of the informant (P.W.6). The witnesses who claimed to have come after the occurrence are not FIR named witnesses and not only that these witnesses have also given different versions with regard to the time when Sitaram Chaudhary died on the place of 12 occurrence. There are vital contradictions between the evidence of the informant (P.W.6), as well as P.Ws.4 and 5. The only witness named in the FIR is Ram Ashish Chaudhary who has turned hostile and has not supported any part of the allegation and has stated that while he was sleeping at his room then the dacoits have come and committed the offence. The seized straw has not been chemically examined, so it has not been proved that the seized blood was of human being. Not only that the doctor’s evidence is different from the prosecution story because the death was not due to firearm which is the case of the prosecution rather the death was due to use of explosive device. This is not the case of the prosecution that any person has exploded any explosive, so manner of occurrence has not at all been established. So these are the vital contradictions. If the prosecution comes with a particular version that the offence has been committed in such manner, then onus is upon it to prove the charges beyond shadow of all reasonable doubt. If that is not done, then definitely doubt is credited with regard to commission of the offence as well as the 13 participation of the accused in the commission of the offence. Neither it has been proved that the occurrence was committed in the manner as alleged nor participation of the accused persons has been established. As such, the prosecution has not been able to prove that these appellants have caused murder or committed dacoity in the house of the informant. 14. In the result, the judgment of conviction and order of sentence is set aside. Both the appeals are allowed. The appellants of both the appeals are acquitted and they are discharged from the liability of their respective bail bonds. Patna High Court, Patna Dated 2nd of December, 2010 kksinha/- N.A.F.R. (Shyam kishore Sharma, J.) (Akhilesh Chandra, J.)