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2000 DIGILAW 17 (PAT)

Sita Ram Yadav v. State Of Bihar

2000-01-06

R.N.PRASAD, S.N.PATHAK

body2000
Judgment 1. These three appeals arise out of the common judgment and order of conviction. They have been heard together and are being disposed of by this judgment. 2. These appeals have been filed against the judgment and order dated 21-4-1987 passed by 1st Addl. Sessions Judge, Aurangabad in S.T. No. 87/5 of 1981/83 whereby the appellants in Cr. Appeal No. 163/87 have been convicted for the offence under Secs. 302/149 of the Indian Penal Code and they have been sentenced to undergo imprisonment for life. They have further been convicted for the offence under Sec. 147 of the Indian Penal Code but no separate sentence has been awarded. The appellant in Cr. Appeal No. 186/87 has been convicted for the offence under Sec. 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life. He has further been convicted for the offence under Sec. 148 of the Indian Penal Code but no separate sentence has been awarded. The appellant in Cr. Appeal No. 205/87 has been convicted for the offence under Secs. 302/109 of the Indian Penal Code and has been sentenced to undergo imprisonment for life. He has further been convicted for the offence under Secs. 302/149 of the Indian Penal Code but no separate sentence has been awarded. He has further been convicted for the offence under Sec. 147 of the Indian Penal Code but no separate sentence has been awarded. 3. One Biga Yadav took the dead body of his son, namely, Barhu Yadav on 1-4-1978 at 4 A.M. to the Police Station and gave his fardbeyan that his brother Fulchand was issueless. He alienated 8 bighas of land in the name of his wife Tetri Gowalin. He suspected that she will alienate the property to others and as such during his lifetime he got the land alienated in favour of Barhu Yadav, son of the informant. About 7 years ago Fulchand Yadav died. He was giving 25 mounds paddy to Tetri Devi for maintenance but she was not satisfied and she used to say to return the land. One Nanu Singh of village Kherwan got the land alienated in his favour from Tetri Devi. Tetri Devi also used to say that she had alienated the land in favour of Nanu Singh. Tetri Devi was lady of bad character. She had illicit relation with many persons. One Nanu Singh of village Kherwan got the land alienated in his favour from Tetri Devi. Tetri Devi also used to say that she had alienated the land in favour of Nanu Singh. Tetri Devi was lady of bad character. She had illicit relation with many persons. On 31-3-1978 the informant and his family members after taking meal were sleeping in his house. His son Barhu Yadav was also sleeping there. Panchu Pasi and Sukhu Pasi informed that some miscreants had assembled in the Ahar. Barhu Yadav informed the villagers and he along with villagers assembled under the neem tree which was near his house. In the meantime 10-12 persons came running and hurled bomb on Jitu Yadav. He ran away. The miscreants climbed on the roof of the house and came down in court yard and assaulted the family members. They were searching Barhu Yadav. There was alarm. However, Barhu Yadav climbed on the roof of the house and Nunu Singh ordered to kill him on which Ramkesh Gahlot hurled a bomb causing injury to Barhu Yadav and he fell down from the roof of the house. The miscreants while retreating took away ornaments, Radio and watch etc. The miscreants were flashing torch in which he identified Ramkesh Gahlot, Ramroop Yadav, Chhatihar Yadav, Sitaram Yadav, Nunu Singh, Siri Yadav, Bindeshwar Yadav and Tapeshwar Yadav. After the occurrence he went near son, namely, Barhu Yadav who was lying in injured condition. He along with others was taking him to the Police Station but he died on the way. 4. On the aforesaid fardbeyan a formal First Information Report was drawn and the investigation was taken up. On completion of investigation charge sheet was submitted against 8 persons, cognizance was taken and the case was committed to the Court of session for trial. During pendency of trial the informant died and as such he was not examined in the Court. However, the trial Court acquitted four accused persons and convicted the appellants for the offences as indicated above. 5. The defence of the appellants was that they were innocent and did not commit any offence. They had falsely been implicated in the case out of enmity. 6. The prosecution in support of its case examined 9 witnesses, out of whom P.W. 1 is formal witness who proved First Information Report, Ext. 1. 5. The defence of the appellants was that they were innocent and did not commit any offence. They had falsely been implicated in the case out of enmity. 6. The prosecution in support of its case examined 9 witnesses, out of whom P.W. 1 is formal witness who proved First Information Report, Ext. 1. P.W. 8 is Doctor who heldpost-mortem over the dead body. P.W. 9 has proved seizure list, Ext. 3 and inquest report, Ext. 4. P.Ws. 2, 6 and 7 have been declared hostile. P.Ws. 3, 4 and 5 claimed to be eye-witnesses to the occurrence. 7. Admittedly P.W. 3 is nephew of the deceased. P.W. 4 is brother of the deceased and P.W. 5 is son of the deceased. No independent witness has been examined in support of the prosecution case. The informant died during pendency of the trial and as such he was not examined. The Investigating Officer had also not been examined in this case, P.Ws. 3 and 5 both claim to have identified the miscreants and they named the miscreants in the Court. However, their attention was ddrawn to the statement made before the police during investigation to the effect that they did not claim to identify any of the miscreants. The trial Court for being satisfied looked into the case diary and has come to the conclusion that they did not claim to identify any of the miscreants. However, this much is obvious that the Investigating Officer has not been examined and as such the case of defence has been prejudiced because of non-examination of the Investigating Officer. In such a situation their evidence cannot be held to be worthy of reliance. 8. Thus P.W. 4 is the only witness to the occurrence. He is brother of the deceased. The witness has stated in his evidence that in the evening information was given that miscreants have assembled in the Ahar, whereas in the fardbeyan it has been alleged that while the informant including the deceased and family members were sleeping information was given that miscreants have assembled in the Ahar. The witness, however, stated that Barhu Yadav, the deceased, informed the villagers and the villagers assembled under a neem tree which is near the house of the witness. He stated in his evidence that the appellants climbed on the roof of the house and came down in the Court yard. The witness, however, stated that Barhu Yadav, the deceased, informed the villagers and the villagers assembled under a neem tree which is near the house of the witness. He stated in his evidence that the appellants climbed on the roof of the house and came down in the Court yard. The deceased also climbed on the roof of the house. However, he was seen by appellant Noonu Singh who ordered to kill on which Rakesh Gahlot hurled bomb causing injury to Barhu Yadav who fell down from the roof. He claimed to have identified the dacoits in the light of lantern and Dhibri burning in the house and also in the light of torch in the hands of the dacoits. The dacoits also took away five boxes from his house. The witness further stated, that after the dacoits ran away he went near his brother Barhu Yadav. Barhu Yadav was alive at that time. He stated that on the order of Nunu Singh, Ram Kesh hurled bomb causing injury to him. The witness also stated that he had stated about the means of identification before the police and also that tiles of the roof also had fallen down because of climbing on the roof of the house, but since the Investigating Officer has not been examined in this case the evidence of the witness cannot be tested with regard to findings at the place of occurrence. In cross-examination the witness has also stated that he was in the (sic) and was standing near the door of the room but the dacoits did not do anything to him. This appears to be improbable. The witness has also stated that family members were assaulted by the dacoits but none of them have been examined in support of the prosecution case. He has further stated that while he was talking with the deceased his family members were there but subsequently he stated that villagers were also there and the deceased disclosed the name of Nunu Singh and Ram Kesh but none of them were examined in support of disclosure of the name of the miscreants by the deceased. In the First Information Report it has been stated that dacoits threw bomb on Jitu but this witness stated in evidence that no bomb was thrown on Jitu. In the First Information Report it has been stated that dacoits threw bomb on Jitu but this witness stated in evidence that no bomb was thrown on Jitu. The witnesses also stated that hulla was raised at the time of dacoity but subsequently stated that no hulla was raised at the time of dacoity rather hulla was raised after dacoity. Therefore, it is evident that evidence of the sole witness is contradictory in itself and as such it cannot be said that his evidence is wholly trustworthy. It is well established rule of law that conviction can be sustained on the evidence of sole witness if his evidence is found to be wholly trustworthy, but in the instant case from the discussion made above the evidence of sole witness, namely, P.W. 4 does not appear to be wholly trustworthy nor there is any corroboration of his evidence. In such a situation it is not safe to sustain conviction of the appellants. Moreover, non-examination of the Investigating Officer has also caused prejudice to the case of defence. In fact the place of occurrence, as has been alleged, has not been proved by the prosecution. 9. Thus, on consideration these appeals are allowed. The judgment and order of conviction and sentence are hereby set aside. They are discharged from the liability of the bail bonds.Appeal allowed.