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2003 DIGILAW 1085 (PAT)

Jai Kishun Mahto v. State Of Bihar

2003-10-14

R.N.PRASAD, RAJENDRA PRASAD

body2003
Judgment R.N.PRASAD and RAJENDRA PRASAD JJ. 1. The appellants have come against the judgment and order dated 21.9.1987 passed by 6th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 414 of 1983 whereby they have been convicted for the offence under Section 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life. They except one Birja Kahar, appellant in Criminal Appeal No. 504 of 1987 have further been convicted for the offence under Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for five years. 2. The occurrence took place on 25.12.198b at about 5.30 p.m. Kamla Kumari, the daughter of the deceased Radha Kishun Sao, gave her fardbeyan on 25.12.1980 at about 5.30 p.m. her step mother, Chandrawati was preparing tea. Her father was sitting there. Guru Charn Mahto came and asked her father to take chewable tobacco. He came out of the house and sat on the Charan Nad of Balkishun Kahar. She came out of the house with tea. Her father asked Birju Kahar for chewale tobacco. He replied that he had not chewable tobacco. In the meantime Guru Charan Mahto concealed himself in the lane. Three persons came armed with guns from north. Guru Charan Mahto also came with a gun. He put the gun on the head of her father and fired. Jai Kishun Mahto also fired at the back of her father. In the meantime other accused persons including Surendra Mahto came with a gun and Surendra Mahto said that her father was alive and he also fired at her father. He fell down on the ground. She, however, went from the place of occurrence and informed Jhuni Lai and Salik Sah about the incident. Villagers also came at the place of occurrence. 3. On the aforesaid fardbeyan a formal first information report was drawn and investigation was taken up. After completion of the investigation charge-sheet was submitted against twelve accused persons including the appellants. Cognizance was taken up and thereafter the case was committed to the Court of Session for trial. 4. The trial Court convicted the appellants as indicated above and acquitted seven accused persons. 5. The defence of the appellants was that they were innocent and had falsely been implicated in the case. The deceased had some illicit relation with the daughter of Ram Das Koiri. 4. The trial Court convicted the appellants as indicated above and acquitted seven accused persons. 5. The defence of the appellants was that they were innocent and had falsely been implicated in the case. The deceased had some illicit relation with the daughter of Ram Das Koiri. Some other persons had also illicit relation with the , daughter of aforesaid Ram Das Koiri and out of rivalry such other persons killed the deceased and they had been implicated at the instance of other persons. 6. During the trial ten witnesses were examined out of which PWs 1 to 7 have been tendered. PW 8 is informant and claimed to be eye-witness to the occurrence. PW 9 is Assistant Sub-Inspector of Police, who recorded the fardbeyan of the informant, Ext. 1, proved formal first information report, Ext. 2, inspected the place of occurrence and prepared inquest report, Ext. 3 PW 10 is formal witness, who proved the postmortem report Ext. 4. 7. The contention of the learned counsel for the appellants is that the prosecution case is based on sole evidence of PW 8 who is daughter of the deceased in such a situation maintaining the conviction of the appellants would not be safe. In this regard it would not be out of place to mention that law does not prescribe that there should be a particular number of witnesses to prove the fact. Section 134 of the Evidence Act says that no particular number of witnesses shall in any case be required for proof of any fact. In the case of Vadivelu Thevar V/s. State of Madras, AIR 1957 SC 614 , Apex Court has held that conviction can be maintained only on the evidence of sole witness provided the evidence of such witness is wholly reliable. The Apex Court has classified the evidence of such witness into three categories namely, (i) wholly reliable (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In first two categories there is no difficulty in coming to a conclusion. The accused can be convicted or acquitted in these circumstances. The difficulty arises in third category. When evidence of sole witness is neither wholly reliable nor wholly unreliable then corroboration is necessary for maintaining the conviction. Keeping in mind the well settled principle of law we proceed to examine the evidence of sole eye-witness, PW 8 who is daughter of the deceased. The difficulty arises in third category. When evidence of sole witness is neither wholly reliable nor wholly unreliable then corroboration is necessary for maintaining the conviction. Keeping in mind the well settled principle of law we proceed to examine the evidence of sole eye-witness, PW 8 who is daughter of the deceased. 8. The occurrence took place on 25.12.1980 at about 5.30 p.m. The fardbeyan is alleged to have been recorded on 26.12.1980 at about 5.30 a.m. i.e., after twelve hours. PW 8 in cross-examination has stated that her fardbeyan was recorded at 10 a.m. The tendered witness. PW 7 has stated that the occurrence took place at 7 p.m. The witness has admitted in her evidence that chaukidar was at the place of occurrence but she did not disclose the incident to chaukidar. The witness further stated in her evidence that blood had fallen on the Charan Nad where the deceased was sitting, on the ground and also on the wall. PW 9 who recorded the fardbeyan and inspected the place of occurrence did not say anything about the blood. In fact, there is no evidence on the record to the effect that blood was found at the place of occurrence. Similarly, the witness categorically stated in her evidence that firing was made from a close range on the deceased. The doctor has not been examined but the post-mortem report has been brought on the record and marked as Ext.4. We have gone through the post-mortem report wherefrom it appears that the doctor has not found charring/tattoing injury on the person of the deceased to establish that firing was made from close range. Moreover, it has been stated by PW 8 that only three firings were done at the deceased but the doctor has found five injuries on the person of the deceased. Similarly the witness has stated in her evidence that her father had taken meal at about 2 p.m. The murder was committed at 5.30 p.m. but the postmortem shows that rice and pulse were found in the stomach of the deceased. This shows that no incident took place at the time alleged by the prosecution. The murder as alleged, took place after 3 and 1/2 hours. This shows that no incident took place at the time alleged by the prosecution. The murder as alleged, took place after 3 and 1/2 hours. In such a situation semi-digested food should have been found by the doctor but the post-mortem is something different which creates doubt about the veracity of the evidence of PW 8. 9. On consideration of the evidence, as discussed above, it appears that evidence of sole witness PW 6, is not wholly trustworthy and it comes within the category of neither wholly trustworthy nor wholly untrustworthy. In such a situation, corroboration is necessary for maintaining the conviction but there is no such evidence on the record. 10. Therefore on consideration we find that it is not safe to maintain conviction on the testimony of such sole eye-witness. Accordingly, both the appeals are allowed. The judgment and order of conviction is hereby set aside. The appellants are discharged from the liability of their bail bonds.