Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 1170 (PAT)

Dina Yadav v. State Of Bihar

2002-10-31

P.N.YADAV, S.N.JHA

body2002
Judgment S.N.Jha and P.N.Yadav JJ. 1. There are three appellants in this appeal. They have been convicted under Section 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. They have also been convicted under Section 201 of the Penal Code and sentenced to rigorous imprisof. ment for two years. 2. Raj Kumar Yadav of village Premtola, P.S. Naya Ram Nagar (Safiyabad) district-Munger made a fardbeyan on 18.7.96 at 8.30 P.M. to the effect that at 5.00 P.M. his brother Pampu Yadav had been shot dead by the appellants and his body thrown in the Ganges across village Janipur. He stated that the occurrence was seen by Bisheshwar Paswan, Ramji Paswan, Rohin Yadav, Khaltu Yadav and several others. He further disclosed that motive behind the occurrence was pending dispute between his deceased brother Pampu Yadav and Guruji Yadav. 3. The above fardbeyan was recorded by Sub-Inspector of Police Murari Prasad of Safiyabad Outpost at the house of Raj Kumar Yadav (hereinafter referred to as the informant). On the basis of the fardbeyan Naya Ram Nagar P.S. Case No. 79/96 was instituted and investigation followed. At the end of the investigation after observing necessary formalities, S.I. Murari Prasad submitted chargesheet against the appellants and they were thus put on trial. 4. At the trial the prosecution examined eight witnesses to prove its case, out of whom four turned hostile and one was tendered. The hostile witnesses are P.W. 1 Maharangi Paswan, RW. 2 Ramji Paswan, P.W. 4 Bisheshwar Paswan and P.W. 5 Khaltu Yadav. The tendered witness is P.W. 3 Rohin Yadav. S.I. Murari Prasad i.e. the Investigating Officer, Bijay Kumar Mandal, a Judicial Magistrate who recorded the statement of P.W. 1 Maharangi Paswan under Section 164 Cr.P.C, were examined as P.Ws. 7 and 8. The informant, Raj Kumar Yadav, examined as P.W. 6 is the solitary material witness on the point of occurrence. 5. Shri Rajendra Narayan, learned counsel for the appellants, submitted that the alleged eye witnesses did not support the prosecution case and from bare reading of the fardbeyan it would appear that the informant did not even claim to have seen the actual occurrence. 5. Shri Rajendra Narayan, learned counsel for the appellants, submitted that the alleged eye witnesses did not support the prosecution case and from bare reading of the fardbeyan it would appear that the informant did not even claim to have seen the actual occurrence. Before the police also, in his further statement under Section 161 Cr.RC, the informant did not claim to have seen the occurrence which is evident from the evidence of the Investigating Officer who stated that the informant did not state before him that he was accompanying the deceased at the time of occurrence. Counsel submitted that in Court the informant gave an improved version of the occurrence making several additions and embellishments which makes his evidence doubtful. 6. The evidence of the informant may be noticed at this stage. He stated that the occurrence took place on 18.7.1996 at 5.00 P.M. While he and with his deceased brother were crossing the Diara, the deceased went ahead and on account of rains he (informant) left behind. To protect himself from the rains the deceased went towards the mill of Bisheshwar Paswan, P.W. 4. At that point of time the appellants shot at him causing bleedings injuries on his chest and head. He (informant) shouted. The appellants then tied the neck of the deceased with a rope and started dragging him. They threw the dead body in the Ganges flowing 10-20 steps from the place. On hearing the shout P.W. 4 Bisheshwar Paswan and many others came there. Bisheshwar Paswan was threatened by the appellants. RW. 1 Maharangi Paswan was also present there and his statement under Section 164 Cr.P.C. was recorded. However, on account of threat he had turned hostile in Court. P.Ws. 3 and 5, namely, Rohin Yadav and Khaltu Yadav also turned hostile as they belonged to the family of the appellants Kailash @ Kalu Yadav and Sudhir Yadav. The informant also disclosed about the motive of the crime being outstanding dispute between Guruji Yadav, brother of appellant Dina Yadav on the one hand and the deceased on the other. 7. The law is settled that there is no bar to base conviction on the evidence of sole eye witness provided the witness is wholly reliable and his evidence is wholly trustworthy. It is on this touch stone that the evidence of the informant has to be considered. 7. The law is settled that there is no bar to base conviction on the evidence of sole eye witness provided the witness is wholly reliable and his evidence is wholly trustworthy. It is on this touch stone that the evidence of the informant has to be considered. As mentioned above, all that he stated in the fardbeyan and also, perhaps, before the Investigating Officer was that the appellants had shot dead the deceased. He did not make any claim that he was accompanying the deceased at the relevant time or that he saw the appellants firing shots at him. He said so for the first time in Court. As a matter of fact, even in his evidence he stated that while they were crossing the Diara the deceased went ahead and on account of rains took shelter in the mill of Bisheshwar Paswan leaving behind the informant. In cross-examination he stated that when he reached the place of occurrence he foundthe marks of blood clearly suggesting that he was not present at the place and time when the shots were fired. He reached there only later and found blood and water mixed with blood. His evidence to the effect that he saw the appellants tying the neck of the deceased and dragging him also is an addition since no such claim was made in the fardbeyan. All that he said in this regard is that after killing the deceased the appellants threw his dead body in the river across village Janipur. We are of the view that had the informant been in the company of the deceased and seen the actual assault and/ or, further, seen the appellants dragging his dead body he would have said so in the earlier version. The version coming for the first time in Court after a year cannot be taken without a pinch of salt. 8. Though the other alleged eye witnesses as mentioned in the fardbeyan, namely, Bisheshwar Paswan, Ramji Paswan, Rohin Yadav and Khaltu Yadav turned hostile in Court, it may be mentioned that even according to the informant, two of them, namely, Rohin Yadav and Bisheshwar Paswan (and others) reached the place of occurrence only on shouts raised by him. 8. Though the other alleged eye witnesses as mentioned in the fardbeyan, namely, Bisheshwar Paswan, Ramji Paswan, Rohin Yadav and Khaltu Yadav turned hostile in Court, it may be mentioned that even according to the informant, two of them, namely, Rohin Yadav and Bisheshwar Paswan (and others) reached the place of occurrence only on shouts raised by him. If this is true it would follow that at least Rohin Yadav and Bisheshwar Paswan on the own saying of the informant were not present at the time and place of occurrence. However, it is not necessary to go into that aspect as both of them, indeed, Ramji Paswan and Khaltu Yadav as well, turned hostile and therefore whatsoever they might have said earlier is of no consequence. Counsel for the State agreed that the fate of the case depends on the evidence of the informant alone. 9. In the facts and circumstances, we do not think that evidence of the informant is such as may be called wholly trustworthy and the witness can be called wholly reliable. Having made embellishments in his evidence and made contrary statements, we are of the view that appellants cannot be convicted on his solitary evidence and they must be given benefit of doubt. 10. in the result, the appear ars allowed, the conviction and sentences awarded to the appellants are set aside and they are acquitted of the charges. Appellant Sudhir Yadav is on bail. He is discharged of the liability of bail bond. Other two appellants, namely, Dina Yadav and Kailash @ Kalu Yadav are in custody. They are directed to be released forthwith, if not wanted in any other case.