Rupan Yadav v. State Of Bihar — 1996 DIGILAW 6 (PAT)

Judgment Dharampal Singh, J. 1. This appeal is directed against the judgment and order dated 19-1-1993 passed in Sessions Trial No. 221/1990/285/ 1991 by Sri Nirmalendu Kumar Kanth Niraj, 1st Additional Sessions Judge, Jamui, whereby the two appellants in this appeal, namely, Rupan Yadav and Baini Yadav alias Bagani Yadav have been convicted of the offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. 2. The case of the prosecution as disclosed from the Fardbeyan (Ext. 6) recorded on the statement of the informant. Mohammad Suddin (P.W. 1), is that the informant alongwith his father. Jan Mohammad Mian (the deceased) while proceeding from their house in village Tarakura towards Jhajha had reached in a forest, known as Drogwa forest at about p.m. on 14-10-1989, the informant sat down to urinate, while his father Jan Mohammad Mian proceeded ahead. When the informant got up after making water, he saw that the appellant. Bagani had caught hold of Jan Mohammad Mian, while the other appellant. Rupan Yadav was stabbing at him. When the informant saw this occurrence, the appellants chased him up to some distance. The informant went to a village Barasingha running and there he met his uncle, Sultan Mian and his cousin, Abbas Mian, who were manufacturing Biri at the premises of one Md. Halim. The informant told them about the occurrence and then he alongwith them came to the place of occurrence where Jan Mohammad Mian was found dead in pool of blood. When the informant started proceeding towards the police station for lodging information, a police officer happened to reach there and the Fardbeyan (Ext. 6) was recorded by the police officer (P.W. 5) Shyam Kumar Singh, on the basis of which the case was instituted by drawing up a formal first information report (Ext. 5). 3. The motive of the occurrence, according to the prosecution, was that the appellants had enmity with one Elahi Mian, who happened to by the Samdhi of the deceased and the appellants did not like that the deceased should meet Elahi Mian, and the appellants had previously threatened the deceased, asking him not to meet Elahi Mian. 4. 5). 3. The motive of the occurrence, according to the prosecution, was that the appellants had enmity with one Elahi Mian, who happened to by the Samdhi of the deceased and the appellants did not like that the deceased should meet Elahi Mian, and the appellants had previously threatened the deceased, asking him not to meet Elahi Mian. 4. The defence of the accused appellants was complete denial of the allegation and according to them Jan Mohammad Mian had been killed by one Baddu Mian, who happened to be the sala of the informant, with the assistance of another person for the reason that the informant had divorced his wife, who was living not at the place of the informant but at her parents place and this fact had been disliked by Baddu Mian Sala (brother-in-laws) of the informant. 5. In course of trial the prosecution could produce in all five witnesses and five witnesses had also been examined by the defence. Out of the five prosecution witnesses P.W. 1 (Mohammad Suddin) figured as eye witnesses of the occurrence. P.W. 2 (Md. Rauf) is a witness, who stated to have gone to the place of occurrence after hearing about the killing of Jan Mohammad Mian and learnt therefrom the informant the names of the assaillant. P.W. 3 (Shekhawat) was tendered, P.W. 4 is Doctor, Anjani Kumar Sinha, who had done post mortem examination on the dead body of Jan Mohammad Mian and had prepared the post mortem report (Ext.l). And P.W. 5 (Shyam Kumar Singh) was the Investigating Officer. 6. Out of the defence witnesses some of them have specifically stated that Baddu Mian assisted by, one Sultan Mian had stabbed Jan Mohammad Mian and some of the defence witnesses deposed about divorce that had taken place between the informant and his wife and a Panchayat that had been done in that regard. It is needless to say that the defence evidence - hardly requires much consideration because the question for consideration in this appeal is not whether Baddti Mian had killed the deceased with the help of Sultan Mian. 7. It is needless to say that the defence evidence - hardly requires much consideration because the question for consideration in this appeal is not whether Baddti Mian had killed the deceased with the help of Sultan Mian. 7. Learned trial Court after considering the evidence and mainly relying on the evidence of P.W.1, the informant, the solitary eye-witness of the occurrence, has come to the finding that the appellants are guilty of the offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code and accordingly, it has convicted and sentenced as indicated above. 8. Learned counsel for the appellants has strongly contended that the evidence on the record is not sufficient or satisfactory to justify the finding of conviction as given by the trial Court. According to his contention the quality of the evidence of the informant is not of such a nature that on his sole testimony the conviction can be upheld and he pointed out some infirmities in his evidence. He further contends that though several witnesses have been named in the charge sheet (as many as 11), but most of them have not been examined by the prosecution, during trial and no explanation has been advanced for their non-examination. According to his submission P.W. 2, who has been examined, is a hearsay witness and is not witness named in the charge-sheet and his evidence is absolutely unreliable in view of the fact that according to his evidence he had been examined during investigation after 2 and 1/2 months of the occurrence. Learned counsel for the appellants has also pointed out that although the first information report purports to have been recorded on 1410-1989, it had been sent to the concerned Court empowered to take cognizance as late as on 28-10-1989 as would appear from the endorsements made on the Fardbeyan as well as the formal first information report and this would indicate that the Fardbeyan and the first information report was not recorded actually on 14-10-1989 and concocted sometime later but were antidated. 9. On the other hand learned Additional Public Prosecutor has submitted that the evidence of even solitary witness can be taken to be sufficient for holding the appellants guilty and only delay in despatch of the first information report alongwith Fardbeyan to the Magistrate concerned empowered to take cognizance cannot by itself make the case suspicious. 10. 9. On the other hand learned Additional Public Prosecutor has submitted that the evidence of even solitary witness can be taken to be sufficient for holding the appellants guilty and only delay in despatch of the first information report alongwith Fardbeyan to the Magistrate concerned empowered to take cognizance cannot by itself make the case suspicious. 10. The only point that arises for decision in this appeal whether the finding of the learned trial Court holding the appellants guilty of the offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code can be said to be proper and justified on the evidence on the record? 11. The informant obviously appears to be the only crucial witness in this case. He has deposed to the effect that on that Saturday in the evening hours he was going with his father from Tarakura to Jhajha Market when they had reached in the forest, namely, Darogwa, this witness sat down to urinate and his father proceeded ahead. He then said that he saw that his father had been caught by the appellant Bagani and Rupan (the other appellant) was stabbing him. He stated to have raised alarm but he was chased by the appellants. His further evidence shows that he went to the village Barasingha at the house of one Halim Mian where he found his uncle Sultan Mian and one Abbas Mian manufacturing Biri. He stated to have informed them that his father had been killed by the two appellants, namely, Bagani and Rupan. His further evidence shows that many persons, thereafter, ran to the Darogwa forest and his father was then found dead and there were stabbing injuries in his stomach and on his arm. He has named some persons, who had come near the dead body. It may be noticed here that none of the persons named by him has been examined as witness neither those who had reached, according to his evidence at the place of occurrence, nor those Biri manufacturers, whom he claimed to have informed first by rushing to village Barasingha. 12. The witness has deposed about an earlier incident and according to him the two appellants had forbidden his father to go to Elahi Mian, the father-in-law of the informant and some threat was also given by them, but it was not taken seriously. 12. The witness has deposed about an earlier incident and according to him the two appellants had forbidden his father to go to Elahi Mian, the father-in-law of the informant and some threat was also given by them, but it was not taken seriously. The evidence of this witness during cross-examination vide paragraph-II is that he had not informed his other brothers about the occurrence, which seem to indicate a conduct, that is improbable. Paragraph 13 of his evidence shows that he did not inform other brothers as to who had killed his father. Paragraph 23 of his evidence shows that there was no enmity or litigation between the appellants and the deceased and obviously there was no motive for killing Jan Mohammad Mian. The appellants had enmity with Elahi, and Elahi would have been target and not Jan Mohammad Mian. The evidence of this informant shows that the appellants did not want the deceased to meet his Samdhi (Elahi Mian); but there is nothing to indicate that despite the previous alleged warning given by the appellants to the deceased against meeting Elahi Mian, the victim deceased had ever tried to meet Elahi Mian after the alleged threat. 13. It does not appear from the evidence that how the Police Officer happened to reach the place of occurrence where the Fardbeyan (Ext.6) was said to have been-recorded on the statement of the informant. The evidence of P.W.5 does not indicate that he received any information, there was any reason as to why he had gone towards the forest an a that had been the place of occurrence. The evidence of the Investigating Officer shows that the place of occurrence is lonely place and there is no basti or house near the place of occurrence in any of the sides. Though this Investigating Officer stated to have prepared seizure list, no witness of the seizure list had been produced. The evidence of P.W. 2 shows that one Samshir had gone to the village shouting that Jan Mohammad Mian had been killed in the Darogwa Jangal and then this witness had gone there. According to the evidence of this witness in that Jangal (forest) Suddin Mian had told that Bagani and Rupan had killed Jan Mohammad Mian. This would indicate that before reaching at the place of occurrence even this witness had not been informed as who were the assailants. According to the evidence of this witness in that Jangal (forest) Suddin Mian had told that Bagani and Rupan had killed Jan Mohammad Mian. This would indicate that before reaching at the place of occurrence even this witness had not been informed as who were the assailants. According to his own evidence (vide paragraph-12) this witness had been examined by the police during investigation after about two and half months of the occurrence, and so no reliance can be placed on the evidence of P.W. 2. There appears to be some infirmities in the evidence of the informant also as already noticed above. He has stated to have run to the village Barasingha after he claimed to have seen the occurrence. The village Barasingha, according to the evidence of P.W. 2 vide paragraph-9 is about the distance of 3 kilometres from the place of occurrence. None of the witness has come forward to say that the informant had told him at the very first meeting as to who were the assailants of his father. None of the Biri makers has come forward to say that he had learnt the name of the assailants from the informant. The long delay in sending the first information report alongwith the Fardbeyan to the Magistrate empowered to take cognizance also throws some doubt as to whether, Fardbeyan and F.I.R. was actually recorded at the time on which the same purported to have been recorded. As noticed above no explanation has been given by the Investigating Officer as to how he could have gone to the lonely place where the Fardbeyan is said to have been recorded at 6.00 in the evening on 14-10-1989. In our opinion the evidence on the record cannot be considered to be sufficient and satisfactory enough to justify the finding of conviction of the appellants. The evidence of the informant cannot be said to be of such quality as can be accepted to be completely reliable to uphold the conviction of the appellants of an offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code. 14. We, accordingly, decide the point for decision by holding that the finding of conviction of the appellants is not proper and Justified on the evidence on the record. 14. We, accordingly, decide the point for decision by holding that the finding of conviction of the appellants is not proper and Justified on the evidence on the record. We, accordingly, allow this appeal, set aside the finding of conviction and sentence passed by the learned trial court against the appellants and direct that the appellant No.1 (Rupan Yadav), who is in custody, be set at liberty forthwith if not required in any other case(s), and the other appellant be discharged from the liability of the bail bond.