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2003 DIGILAW 157 (JHR)

Gurmukh Singh v. State of Bihar (Now Jharkhand)

2003-01-31

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
Judgment Lakshman Uraon, J.-Both the appellants have preferred this appeal against the judgment and order of conviction and sentence dated 30.11.98 and 1. 12.98 respectively passed by Shri Rajesh Kumar Dubey, Vlllth Addl. Judicial Commissioner, Ranchi in S.T.No.291/97 whereby and whereunder the appellant No.1 Gurmukh Singh, was sentenced for life under Section 302, IPC and further appellant No.2, Basanti Devi and appellant No.1, Gurmukh Singh, were sentenced for life imprisonments under Section 302/34, IPC, directing both the sentences will run concurrently. 2. The prosecution case is based on the fard beyan of Man Singh, PW-3, the informant of this case, whose fard beyan, Ext.1, was recorded by S.I. of P.S Sukhdeonagar, S.K. Jha, on 8.11.96 at Sadar Hospital, Ranchi at 13 Hrs, alleging that the deceased Sardar Bhagat Singh was the elder brother of the informant, Man Singh. Sardar Bhagat singh was residing alongwith his family at Jamshedpur whereas his remaining four brothers are residing at ltki Road, Piska More, P.S.-Sukhdeonagar, District-Ranchi. Sardar Bhagat Singh had advanced Rs.40,000/- to the appellants to run poultry-farm business after selling the lands in the month of May 1996 by his mother situated at Piska More. To realize the loan amount, Sardar Bhagat Singh had come from Jamshedpur one month prior to the alleged occurrence and was staying with the informant, Man Singh. On 8.11.96 at about 10 A.M. the informant and his elder brother, Sardar Bhagat Singh, had gone to realize the advanced amount to the residence of Basanti Kaur @ Basanti Devi, situated at Etki Road. The informant was talking with his sister, Rani Kaur, by the side of the house of the appellants and his elder brother, Bhagat Singh, had gone to Basanti Kaur, who is the wife of his elder brother to realize the advanced amount. Basanti Kaur and Bhagat Singh came out and were talking. In course of altercation Basanti Kaur @ Basanti Devi caught both the hands of Bhagat Singh from behind and then her son, Gurmukh Singh, appellant No.1, stabbed four times on the chest and abdomen of Bhagat Singh. On being injured Bhagat Singh fell down crying for help. On hearing the alarm, Gurbinder Kaur, PW-2, Rani Kaur, PW-1 and other Mahalla people saw the alleged occurrence. They saw the appellant, Gurmukh Singh, fleeing away with a Chhura in his hand. Formal FIR, Ext. On being injured Bhagat Singh fell down crying for help. On hearing the alarm, Gurbinder Kaur, PW-2, Rani Kaur, PW-1 and other Mahalla people saw the alleged occurrence. They saw the appellant, Gurmukh Singh, fleeing away with a Chhura in his hand. Formal FIR, Ext. 3, was drawn on the same day at about 9.30 P.M. and after investigation chargesheet under Section 302/34, IPC, was submitted against both the appellants. 3. The prosecution has examined altogether six witnesses in order to substantiate the charges levelled against the appellant No.1 under Section 302, IPC and also against both the appellants under Section 302/34, IPC. PW-1, Rani Kaur, sister of the informant, PW-2, Gurbinder Kaur, wife of the elder brother of the informant and PW-3, Man Singh, the informant and the brother of the deceased, claim to be the eye-witness. PW-4, Jagdeep Singh, is the nephew of the informant, who was not present at the P.O. at the time of the alleged occurrence. PW-5, Sushil Kr. Jha, is the I.O. and PW-6 is Dr. Tulsi Mahto, who conducted autopsy on the dead body of Sardar Bhagat Singh. PW-1, Rani Kaur, has deposed that her father, Lakshman Singh, had two wives. From his first wife, he got two sons, namely, Bhagwan Singh and Bhajan Singh, and one daughter, namely, Prakash Kaur. From the second wife he got eleven issues. Her father died in the year 1975 whereas her mother is alive. During the life time of Lakshman Singh partition had taken place in which the appellant No.2, Basanti Devi @ Basanti Kaur, was given 11 Kathas of land on which she is residing after constructing a house. She had also sold some lands out of 11 Kathas. She has deposed that after selling the land, Sardar Bhagat Singh shifted to Jamshedpur 15-17 years ago and was residing there alongwith his family members. Thus the witnesses are the family members of the informant and the deceased. The informant, PW-3, Man Singh, is the brother of the deceased, Sardar Bhagat Singh. Sardar Bhagat Singh had come from Jamshedpur to Ranchi one month prior to the alleged occurrence and was staying with him. On 8.11.96 at about 10 A.M. he alongwith the deceased, Bhagat Singh, had gone to the house of Basanti Kaur as she had called him to refund the advanced loan. Bhagat Singh was demanding his advanced loan. Sardar Bhagat Singh had come from Jamshedpur to Ranchi one month prior to the alleged occurrence and was staying with him. On 8.11.96 at about 10 A.M. he alongwith the deceased, Bhagat Singh, had gone to the house of Basanti Kaur as she had called him to refund the advanced loan. Bhagat Singh was demanding his advanced loan. At that time the informant and his sister, PW-1, Rani Kaur. were talking outside the gate of the house of PW-1, Rani Kaur. They heard hot discussions in between Basanti Kaur and Sardar Bhagat Singh. In the mean time Sardar Gurmukh Singh came there. Basanti Kaur caught hold both the hands of Bhagat Singh from behind and then Gurmukh Singh stabbed 4-5 times with Chhura on the chest and abdomen of Bhagat Singh. After stabbing Gurmukh Singh tied away towards North whereas Basanti Kaur went to the P.S. which is at a distance of one K.M. from her house. The informant took the injured Bhagat Singh to Sadar Hospital. Ranchi where he was declared dead. His fard beyan was recorded by the Police on which he signed, Ext. 1/1. The inquest-report was also prepared on which he signed, Ext.2/1. He deposed that first the inquest-report was prepared then his fard beyan was recorded. He had not informed about the alleged occurrence to Manjit, Jagdeep and Kuldip, who are nephews and brother-in-law of the informant. In his fard beyan he has not mentioned that at the time of the alleged occurrence Rani Kaur, Gurbinder Kaur, Kuldip, Manjit and Jagdeep were also present. On the other hand, he has deposed that he met them for the first time in the hospital. He has not named any Mahalla people who had assembled at the P.O. rather he and his sister, PW-1, Rani Kaur, were at the P.O. and were talking. This witness had deposed that in his presence Bhagat Singh had advanced loan of Rs. 40,000/- orally after selling the land of Piska More which was allotted in the share of his mother but this witness does not know as to who is the purchaser of the said land rather he claims that Bhagat Singh sold the land whereas the land was allotted in the share of his mother. He does not remember as to whether he had deposed before the I.O. that his mother had sold the land. He does not remember as to whether he had deposed before the I.O. that his mother had sold the land. As per his statement Bhagat Singh had left Ranchi 5-6 years prior to the alleged occurrence and was residing alongwith his family at Jamshedpur. In the fard beyan he has stated that one month prior to the alleged occurrence Bhagat Singh had gone to Ranchi and was staying with him whereas in course of his evidence he has deposed that 15 days prior to the date of the alleged occurrence he had come to Ranchi and was staying with him. PW-2, Gurbinder Kaur, claims to be the eye-witness as she was standing outside her house and saw the altercation in between Basanti Kaur and Gurmukh Singh on one side and Bhagat Singh on the other side. She also deposed that both the hands of Bhagat Singh were caught from behind by Basanti Kaur and then Gurmukh Singh stabbed with Chhura 3-4 times on his chest and abdomen. When Bhagat Singh fell down then both the appellants fled away. Her house is situated at a distance of 30-40 feet from the house of PW-1, Rani Kaur and at a distance of 50 from the house of the appellant, Basanti Kaur. The house of Rani Kaur is not visible from her house. When she saw the alleged stabbing by Gurmukh Singh and catching hold of both the hands of Bhagat Singh by Basanti Kaur at that time she did not see the informant,. PW-3, Man Singh and PW-1, Rani Kaur, rather Man Singh was standing near the house of Rani Kaur. After the alleged occurrence she saw Rani Kaur, PW-1, and Man Singh, PW-3, standing there. She claims that Bhagat Singh had come to Ranchi 15 days prior to the alleged occurrence. She had no personal knowledge regarding advancement of loan of Rs. 40,000/- by Bhagat Singh to 8asanti Kaur. She has given a different manner of occurrence and has deposed in para 9 that in course of hot altercation in between Bhagat Singh and Gurmukh Singh there was scuffle. Thereafter Basanti Kaur caught hold both the hands of Bhagat Singh and Gurmukh Singh stabbed Bhagat Singh. 40,000/- by Bhagat Singh to 8asanti Kaur. She has given a different manner of occurrence and has deposed in para 9 that in course of hot altercation in between Bhagat Singh and Gurmukh Singh there was scuffle. Thereafter Basanti Kaur caught hold both the hands of Bhagat Singh and Gurmukh Singh stabbed Bhagat Singh. The females of Mahalla were there who saw the alleged occurrence but they had not gone to the P.O. rather she, PW-1, Rani Kaur and PW-3, Man Singh, went there, P-4, Jagdeep Singh, is a hearsay witness, who was informed by his mother about the alleged occurrence. When he came to know that the injured Bhagat Singh was taken to Sadar Hospital then he followed on Scooter and saw the dead body of Bhagat Singh on a Tempo. The Police prepared the inquest report on which he signed, Ext.2/2. He took the dead body for post mortem examination. When he had gone to Sadar Hospital, he had seen the informant, PW-3, Man Singh, Kuldip Singh and Manjit Singh. They had not informed him about the alleged occurrence even till the day when he was examined in the Court. He was not informed by them about the alleged occurrence. He had not stated before the I.O. that when he asked his mother then he was informed by her that Bhagat Singh was done to death by Basanti Kaur and her son, Gurmukh Singh. 4. PW-6, Dr. Tulsi Mahto, conducted the autopsy on the dead body of Bhagat Singh on 8.11.96 at 16.30 Hrs. and found the following stab wounds :- (a) 2 C.M. x 1 C.M. x cavity deep over left chest front upper part situated 5 C.M. left to mid-line, weapon passes through cartilegenous portion left 5th rib, perforates the pericardial and enters into left vertical heart. (b) 3 C.M. x 1 C.M. cavity deep over the left abdomen in front of upper part situated 9 C.M. left to the mid-line, weapon passes through abdominal wall and enters into the stomach (c) 3.5 C.M. x 1.5 C.M. x cavity deep over the left abdomen front situated 6 C.M. left to the umbilicus, weapon passed through abdominal wall and perforates small intestine and mesentry. (d) 2 C.M. x 1 C.M. cavity deep over the right abdomen front lower part situated 3 C.M. right to mid-line the weapons passes through abdomen wall perforates the small intestine. (d) 2 C.M. x 1 C.M. cavity deep over the right abdomen front lower part situated 3 C.M. right to mid-line the weapons passes through abdomen wall perforates the small intestine. (e) 2 C.M. x 1/2 C.M. x 1 C.M. over left shoulder front. The Doctor found blood and blood clots in the abdominal cavity and thoracic cavity. Stomach contain undigested food matter in pasty form 150 Gms. mixed with blood. The Doctor opined that all the injuries were ante mortem in nature caused by sharpcutting-cum-pointing weapon and the death was due to shock and haemorrhage as a result of above injuries within 3-18 Hrs. from the time of post mortem examination. The post mortem examination report is Ext.4 and the signature of this witness is, Ext. 4.11. 5. PW-5, Sushil Kr. Jha, S.I. was informed on phone on 8.11.86 about the alleged occurrence. He went to Etki Road and came to know that the injured was taken to Sadar Hospital, Ranchi by Man Singh and his family members. He went to Sadar Hospital and found S.I., Shailendra Kumar of Lower Bazar P.S. who was preparing inquest-report. Thereafter this witness, PW-5, recorded the fard beyan, Ext.1, of Man Singh. The inquest-report was prepared by S.I., Shailendra Kumar, in his pen and signature, Ext.2. He went to the P.O. at 4 P.M. on the same date i.e, 8.11 96. The P.O. is the road outside the house of the appellants which is a private road of the Mahalla. He found the blood fallen on the grass. Adjacent to the East of that P.O. there is the house of the appellant. There is boundary wall of 3' height in the house. In the West there is the house of Manjit Singh. On phone he was informed by the informant, Man Singh, which was entered in the station diary entry but he has not mentioned it in the C.D. He was simply informed that Bhagat Singh was injured by sharp weapon. He had not mentioned as to who was the assailant. He recorded the statements of Kuldip, Man Singh, Jagdeep and Manjit. He arrested the appellant, Gurmukh Singh on the same day whereas the appellant, Basanti Kaur was arrested on the next date i.e. 9.11.96. He did not recover any weapon from the possession of Gurmukh Singh. He did not search the house of the appellant. He recorded the statements of Kuldip, Man Singh, Jagdeep and Manjit. He arrested the appellant, Gurmukh Singh on the same day whereas the appellant, Basanti Kaur was arrested on the next date i.e. 9.11.96. He did not recover any weapon from the possession of Gurmukh Singh. He did not search the house of the appellant. He had no knowledge as to whether the deceased, Bhagat Singh, was accused in any other police case of Sukhdeo Nagar P.S. The I.O. has not recorded the statements of the mohalla people in spite of the directions of the D.S.P. 6. The learned Court below relied the evidence of PW-1, Rani Kaur, PW-2, Gurbinder Kaur, PW-3, Man Singh, PW-5, Sushil Kr. Jha and PW-6, Dr. Tulsi Mahto and convicted the appellants although he has found contradictions in the evidence of PWs-1, 2 & 3 but he observed that the contradiction regarding the genesis of the alleged occurrence, manner of the alleged occurrence and the P.O. are minor contradictions. 7. The learned counsel for the appellants has argued that the genesis of the alleged occurrence regarding the advancement of loan of Rs.40,000/- to Basanti Kaur, has not been proved by the prosecution. The I.O. has not examined any mohalla people although the D.S.P. in his supervision-note had directed him to record the statements of the mohalla people. The P.O. could not be established as the 1.0 did not seize the blood found on the grass. The manner of the alleged occurrence has also not been proved as the eye-witnesses, PWs-1 & 3, were not seen at the P.O. by another eye-witness, PW-2, Gurbinder Kaur. It was also argued that at the time of the alleged occurrence, the appellant No.1, Gurmukh Singh, was juvenile. The learned Juvenile Justice Court did not hold enquiry as provided under Section 32 of the Juvenile Justice Act. Hence the trial in respect of Gurmukh Singh has vitiated. The appellant No.1, Gurmukh Singh, has produced S.L.C. showing his date of birth as 1.3.81 and has also taken the same plea in his statement recorded under Section 313, Cr.P.C. that he is a juvenile. There was also a direction of this Court to examine the plea of being juvenile, raised by this appellant No.1, Gurmukh Singh. 8. The fard beyan, Ext.1, of Man Singh was recorded at 13 Hrs. There was also a direction of this Court to examine the plea of being juvenile, raised by this appellant No.1, Gurmukh Singh. 8. The fard beyan, Ext.1, of Man Singh was recorded at 13 Hrs. on 8.11.96 at Sadar Hospital Ranchi prior to arrival of the I.O. PW-5, Sushil Kumar Jha, S.I. of Lower Bazar P.S. prepared inquest-report, Ext.2, on 8.11.96 at 13.45 Hrs. Shailendra Kumar, S.I. of Lower Bazar P.S. was informed about the alleged murder of Sardar Bhagat Singh by issuing O.D. slip by the Doctor of Sadar Hospital, Ranchi. The informant was present at Sadar Hospital, Ranchi alongwith his nephews and brother-in-law. Thus, the investigation was already started on the information given to Lower Bazar P.S. The inquest-report was prepared at 13.45 Hrs. Thereafter, as per the statement of PW-3, Man Singh and the I.O. PW-5, Sushi Kumar Jha, the fard beyan of Man Singh was recorded. On perusal of the fard beyan it is clear that it was recorded at 13 Hrs. i.e. prior to the preparation of the inquest-report. The FIR given to Lower Bazar P.S. is not on the record. P.W.-5, Sushil Kumar Jha, S.I. was also informed on phone by the informant about the alleged occurrence. He entered S.D. Entry and went to ltki Road where he was informed that the injured Bhagat Singh was taken to Sadar Hospital, Ranchi and then he went there. He was not informed on phone as to who was the assailant. That S.D. Entry was not brought on record only because Man Singh, PW-3, had not named the assailant rather he had simply informed that Sardar Bhagat Singh was injured with sharp-edged weapon. The fard beyan' recorded at 13 Hrs, prior to the preparation of inquest-report, creates doubt in view of the evidence of the informant, PW-3 and the I.O. P-5, itself that the fard beyan was recorded after preparation of the inquest-report by Shailendra Kumar. S.I. of Lower Bazar P.S. The I.O. had also not seized the bloodstained grass, found at the P.O. He did not find any weapon when he arrested Gurmukh Singh on the same day at 4 P.M. He did not search the house of the appellants. In spite of the direction given by the D.S.P., he did not record the statement of mohalla people, who had got their houses adjacent to the house of the appellants. In spite of the direction given by the D.S.P., he did not record the statement of mohalla people, who had got their houses adjacent to the house of the appellants. Non-production of S.D. Entry entered at Sukhdeonagar P.S. and also the information given to Lower Bazar P.S., where the FIR was lodged, were suppressed by the prosecution and later on fard beyan of the informant, Ext-1, was recorded at Sadar Hospital Ranchi at 13 Hrs. This fard beyan, Ext. 1, of the informant has given the details regarding the genesis of the alleged occurrence, manner of the alleged occurrence and P.O. of the alleged occurrence. In absence of the FIR or non-production of S.D. Entry regarding the alleged occurrence creates doubt in the prosecution case which is based on the fard beyan, Ext.1, of Man Singh. 9. The genesis of the alleged occurrence is regarding advancement of Rs. 40,000/- by Sardar Bhagat Singh to the appellants after selling his lands situated at Piska More. PW-1, Rani Kaur, has deposed that Basanti Kaur was allotted 11 Kathas of land. She has constructed the house and is residing there. Some portions of the land were sold by her. This shows that she was not in need of any loan. PW-3, Man Singh, was present when the land was sold but he is unable to say that who is the purchaser. PW-2, Gurbinder Kaur, had no personal knowledge regarding the advancement of loan to Basanti Kaur by the deceased, Sardar Bhagat Singh. PW-1, Rani Kaur, has deposed that her mother, Kartar Kaur, is alive and was attending the Court in course of hearing but the prosecution has not examined her to prove that she had sold the land of her share and had given Rs.40,000/- to Bhagat Singh which he had given to Basanti Kaur as advanceloan to run poultry farm. The deceased, Sardar Bhagat Singh, had sold his lands of Piska More 15-17 years ago and had gone to Jamshedpur where he was residing alongwith his family members but in the month of May 1996 her mother sold the lands of her share and gave Rs.40,000/-to Sardar Bhagat Singh. The deceased, Sardar Bhagat Singh, had sold his lands of Piska More 15-17 years ago and had gone to Jamshedpur where he was residing alongwith his family members but in the month of May 1996 her mother sold the lands of her share and gave Rs.40,000/-to Sardar Bhagat Singh. When Sardar Bhagat Singh had sold the entire property about 15-17 years ago then there was no occasion to come to Ranchi in the month of May 1996 to advance loan of Rs.40,000/- to the appellants which he had received from his mother, Kartar Kaur, after selling her lands. The informant, himself does not know as to who is the purchaser of the land sold by Kartar Kaur or the deceased, Bhagat Singh. The prosecution has .not produced any document regarding the sale of the land. There is also no document regarding the advancement of loan as it was stated that it was orally advanced. There is no eye-witness regarding the advancement of loan to the appellants by the deceased, Sardar Bhagat Singh. Thus I find that the very genesis of the alleged occurrence could not be proved by the prosecution. 10. PW-3, Man Singh, who is the younger brother of the deceased, Sardar Bhagat Singh, has deposed that Sardar Bhagat Singh had come one month prior to the alleged occurrence for demand of loan amount but in course of his evidence he has deposed that 15 days prior to the alleged date of occurrence he had come to Ranchi. PWs-1 & 2 have also deposed that 15 days prior to the alleged date of occurrence Sardar Bhagat Singh had come to Ranchi. There is no evidence to show that as to whether prior to 8.11.96 he had gone to the house of Basanti Kaur @ Basanti Devi to realize his loan amount. The deceased, Bhagat Singh, was staying with the informant, Man Singh, and had gone to the house of Basanti Kaur. PW-2, Gurbinder Kaur, did not see Man Singh and Rani Kaur at the P.O. rather both of them went there after the alleged occurrence. PW-3, Man Singh, claimed that only his elder brother, Sardar Bhagat Singh, had gone to demand money to the house of Basanti Kaur. PW-2, Gurbinder Kaur, did not see Man Singh and Rani Kaur at the P.O. rather both of them went there after the alleged occurrence. PW-3, Man Singh, claimed that only his elder brother, Sardar Bhagat Singh, had gone to demand money to the house of Basanti Kaur. PW-1, Rani Kaur and PW-3, Man Singh, saw that in course of altercation Basanti Kaur caught hold of both the hands of Sardar Bhagat Singh from behind and then her son, Gurmukh Singh came with a Chhura and stabbed four times causing injuries on the chest and abdomen. PWs-1 & 3 did not go to the P.O. to rescue Sardar Bhagat Singh although PW-3, Man Singh, alongwith Sardar Bhagat Singh had gone there to demand the money advanced to Basanti Kaur. PW-3, Man Singh claims that he and PW-1, Rani Kaur, were at the P.O. and saw the alleged occurrence whereas PW-2, Gurbinder Kaur, claims that PWs-1 & 2 were not at the P.O. when the alleged occurrence took place but after the alleged occurrence they went there. These three witnesses have not named the females of mohalla who had gone to the P.O. 11. The learned counsel for the appellants has submitted that the deceased Sardar Bhagat Singh was a criminal and was an accused of Sukhdeonagar P.S. Case No. 189/95 dated 30.11.95, Ext.A, under Sections 307, 353/34, IPC and 27 of the Arms Act and Sukhdeonagar P.S. Case No. 32/84 dated 20.10.84, Ext. B. It was argued that in other cases also he was an accused as per annexures with Ext.B. He was staying at Ranchi one month prior to the alleged occurrence only because at Jamshedpur he was being searched and hence he had come to Ranchi and was staying in the house of the informant, Man Singh. It was submitted that due to his criminal history he might have been murdered somewhere else by his enemies and his dead body was carried by the informant to Sadar Hospital. That is why the P.O. of the alleged occurrence could not be proved. The I.O. did not seize any blood fallen at the P.O. nor he seized any weapon from the possession of the appellants nor he searched their houses which goes to prove that the P.O. is not the road in front of the house of the appellants. That is why the P.O. of the alleged occurrence could not be proved. The I.O. did not seize any blood fallen at the P.O. nor he seized any weapon from the possession of the appellants nor he searched their houses which goes to prove that the P.O. is not the road in front of the house of the appellants. The mohalla people, who had assembled, and witnessed the alleged occurrence should have been examined to corroborate the alleged occurrence. There is vital contradiction in the evidence of PWs-1, 2 & 3 itself regarding the manner in which they saw the alleged occurrence. This is only because the P.O. is not visible from the house of PW-2, Gurbinder Kaur. It is quite unnatural that when there was hot altercation in between Sardar Bhagat Singh and Basanti Kaur even then PW-1, Rani Kaur and PW-3, Man Singh, were talking, standing outside the house of Rani Kaur. They did not rush to rescue Sardar Bhagat Singh rather they went there after the alleged occurrence as deposed by PW-2, Gurbinder Kaur. In view of these contradictory evidence of the witnesses who are the family members of the informant and the deceased, I find that the prosecution has not proved the place of occurrence and the manner of the alleged occurrence. The deceased was of robust health aged about 45 years whereas Basanti Kaur is aged about 50 years and is an ailing lady. Even then the deceased Sardar Bhagat Singh could not get rid of the clutches of Basanti Kaur when he was stabbed four times by Sardar Gurmukh Singh and he also could not resist. The manner of the alleged occurrence seems to me quite improbable as Sardar Bhagat Singh did not struggle when Basanti Kaur caught his hands from behind and allowed him to be stabbed by Sardar Gurmukh Singh. 12. The learned counsel for the appellants has argued that at the time of the alleged occurrence Sardar Gurmukh Singh was juvenile, aged about 15 years and 5 months. The Juvenile Justices Court or the Trial Court did not inquire as required under Section 32 of the Juvenile Justice Act and has relied upon cases reported in BLJ, 1998(1), Page- 452 [: 1997(2) PLJR (SC) 161] (Bhola Bhagat, Prabhunath Pd., Chandrasen Pd. & Ors. vs. State of Bihar), 2000(3) Eastern Criminal Cases, 1587/Patna [: 2000(3) PLJR 802 ] (Gopal Nag & Anr. & Ors. vs. State of Bihar), 2000(3) Eastern Criminal Cases, 1587/Patna [: 2000(3) PLJR 802 ] (Gopal Nag & Anr. vs. State of Bihar). It was submitted that the Honb'le Supreme Court allowed the benefit of treating the accused as a child and ordered the release. It was submitted that in this present case also this appellant No.1, Gurmukh Singh, was juvenile but without any proper enquiry he was tried by the Sessions Court and was convicted. Hence the trial itself has vitiated and the appellant No.1, Gurmukh Singh, cannot be convicted by a Sessions Court. 13. In this present case I have come to the conclusion that the FIR, i.e. S.D. Entry, recorded at Sukhdeonagar P.S. and the information given to the Lower Bazar P.S. were suppressed by the prosecution. The I.O. PW-5, had admitted that the informant PW-3, Man Singh, has not named the assailants. The fard beyan recorded at 13 Hrs. on 8.11.96 before preparation of inquest-report also creates doubt as the inquest-report was prepared at 13.45 Hrs. Thus, there is contradictory evidence of PW-3, the informant, Man Singh and PW-5, I.O, Sushil Kr. Jha, about the time of recording the fard beyan of the informant, PW-3. 14. The prosecution could not establish the P.O. as the I.O. did not seize any blood seen by him at the P.O. which creates doubt as to whether he has actually seen any blood on the grass at the P.O. The defence has taken a plea that they are innocent and only to grab the properties of the appellants, the informant and his sister, Rani Kaur, PW-1, have falsely implicated these appellants in the murder case of Sardar Bhagat Singh. Sardar Bhagat Singh was carrying criminal history and cases were registered against him, Exts. A & B Series. The plea taken by the defence is that Sardar Bhagat Singh might have been murdered somewhere else and not by the side of the house of these appellants on road. The manner of the alleged occurrence also could not be proved as there are contradictory statements of the eyewitnesses, PWs-1, 2 & 3 themselves. Non-examination of independent mohalla people by the I.O. even directed by the D.S.P. in his supervision-note, show; mala tide intention of the I.O. itself to create evidence against these appellants. The manner of the alleged occurrence also could not be proved as there are contradictory statements of the eyewitnesses, PWs-1, 2 & 3 themselves. Non-examination of independent mohalla people by the I.O. even directed by the D.S.P. in his supervision-note, show; mala tide intention of the I.O. itself to create evidence against these appellants. It is doubtful as to whether PWs-1 & 3 were present at the P.O. or not who claim themselves to be the eye-witnesses. The house of Gurbinder Kaur is situated at about 50' away from the P.O. and the location is in such a way that they have given contradictory statements about the situation of their houses and the P.O. Gurbinder Kaur, PW-2, could not have seen the alleged occurrence, standing outside her home, as she did not see, PWs-1 & 3 at the P.O. All these create doubts as to whether PWs. 1, 2 & 3 have actually witnessed the alleged occurrence. 15. In view of the above considered evidence, facts and circumstances of this case, I come to the conclusion that .the prosecution has failed to prove its case beyond all shadows of reasonable doubt for the charges levelled against both the appellants. The learned Court below convicted the appellant stating that the contradictions are minor which cannot be sustained. 16. In the result this criminal appeal is allowed. The appellant No.1, Gurmukh Singh, is in custody, hence he is ordered to be released forthwith, if not wanted in any other case. Appellant No.2, Basanti Kaur @ Basanti Devi, is on bail and she is discharged from the liability of her bailbond furnished in this case. Vishnudeo Narayan. J.-I agree.