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2003 DIGILAW 56 (PAT)

Sheikh Maqbool v. State Of Bihar

2003-01-16

B.N.P.SINGH, PRABHAT KUMAR SINHA

body2003
Judgment Prabhat Kr.Sinha and B.N.P.Singh JJ. 1. Appellant Sheikh Maqbool was found guilty by the learned trial court of having committed offences under section 302 of the Indian Penal Code and 27 of the Arms Act and was convicted as such, having been sentenced to imprisonment for life for the former offence, though under Arms Act no separate sentence was awarded. 2. The facts of the case, in short, as coming out of the first information report by Muslim Rain, are as follows On 20.4.1993 son of Muslim Rain, namely, Ashraf Rain along with co-villagers Md. Bashir Rain and Md. Reyasat Rain had proceeded towards brick kiln of Bajrang Sultania as they used to do every day, for working as reza. After some time the informant followed them and when he reached near the brick kiln he heard a firing sound and saw the appellant fleeing away towards east who did not answer to the query of the informant as to what had happened. When he reached near the office of the brick kiln, he saw his son Ashraf Rain lying prostrate, dead, with blood oozing from his body. On being asked, Md. Bashir Rain and Md. Reyasat Rain told that appellant had asked the deceased to fetch water but on refusal to do that the appellant, who had with him pistol belonging to Sheikh Jamal, fired upon Ashraf Rain and fled away. Sheikh Jamal also fled away. Some witnesses were named in the first information report. 3. The defence of the appellant in court of trial was his false implication because of enmity. 4. In all twelve witnesses have been examined in the case out of whom P.W.1, Dr. Nand Kishore Vidyarthi is the one who had performed autopsy upon the dead body. P.W.2, Sadrul Ansari and P.W.3 Md. Jamaluddin who also was the uncle of the deceased, were witnesses to the seizures made by the Police who testified that from the shirt-pocket of the deceased, thirteen plastic pattis and iron repeat were recovered, which were seized vide seizure list, and they admitted their signatures thereupon. These two are not witnesses to the occurrence. However, P.W.2 has narrated the place of occurrence which was near a hut erected at the brick kiln, two cubits away from which he had seen blood on the ground. These two are not witnesses to the occurrence. However, P.W.2 has narrated the place of occurrence which was near a hut erected at the brick kiln, two cubits away from which he had seen blood on the ground. But he said that the soil there was not seized though P.W.3 claimed that soil was also seized. P.W.4 is Babuwan Yadav @ Babban Yadav, and PW.5 is Md. Reyasat Rain named in the first information report. P.W.6 is Khantar Prasad Yadav and P.W. 7 and 8 are Bechan Sah and Sheikh Ahmad. P.W.9, Muslim Ansari was tendered for cross-examination whereas P.W.10 is Md. Basir Rain. P.W.11 is Md. Muslim Rain, the informant. P.W.12 Promod Kumar Roy is the Investigating Officer. 5. In so far as the evidence is concerned, obviously in the first information report P.W. 5 and 10 have been named as those who had seen the occurrence and had informed the informant about that. In the first information report it was mentioned that when informant reached the place of occurrence he had enquired from Md. Basir Rain son of Md. Reyasat Rain about the occurrence. This P.W.10, Md. Basir Ram who eventually turned hostile and did not support the prosecution case; is son of Md. Bido Rain. However, it was admitted by the State that the witness Basir Rain, who figured in the first information report, was not son of Reyasat Rain but there was a mistake in writing their names in the first information report so much so that it should have been stated that Md. Basir and Md. Reyasat Rain were asked about the occurrence. Md. Basir Rain though did not support the prosecution case, he admitted that the deceased, a co-villager, used to work at the brick kiln alongwith him but denied having given any statement to the Police as attributed to him by the prosecution, also denying that he had seen any one killing him. 6. Before taking up the evidence of Md. Resayat Rain the only other witness who has been claimed to have seen the occurrence, a glance over the evidence of other witnesses. PW.4, Babuwan Yadav @ Babban Yadav, has said that Reyasat and Basir, when he had gone to the brick kiln in the morning of the fateful day, had told that "someone" had killed a child and had fled away. PW.4, Babuwan Yadav @ Babban Yadav, has said that Reyasat and Basir, when he had gone to the brick kiln in the morning of the fateful day, had told that "someone" had killed a child and had fled away. It may be mentioned here that it has come in the evidence that the deceased was a minor, around ten years of age. P.W.4 said that he had seen a person fleeing away but did not identify him. At another place, he also said that Reyasat and Basir told him that Maqbool had killed him when the deceased did not bring water as demanded by the appellant. This witness belonged to the same village where of the informant, P.W. 5 and 10 also resided, but in his cross-examination he said that he had gone to the brick kiln alone and when he reached there he did not see any one of his village whom he knew. He further said that after firing, there was a hulla after which the parents of the deceased also had come to the brick kiln. He specifically said in cross-examination that the parents had come half an hour after the firing had taken place. 7. P.W.6, Khantar Prasad Yadav said that at.about 11.00 A.M. while he was at home the mother of deceased came crying and told him that her son was killed but she did not reveal the name of the assailant. When he went to the brick kiln he did not find any one there, nor he saw any blood on the ground. This witness was also declared hostile but in cross-examination by the prosecution he said nothing that could help it. P.W.7, Bechan Sah also did not support the prosecution case and was declared hostile who also denied the statement attributed to him in the case diary. Similar was the case with P.W.8, Sheikh Ahmad, who also had admitted that he was a friend of the informant. P.W.9, Muslim Ansari, was tendered for cross-examination. 8. P.W.11, Md. Muslim Rain is the informant himself. Similar was the case with P.W.8, Sheikh Ahmad, who also had admitted that he was a friend of the informant. P.W.9, Muslim Ansari, was tendered for cross-examination. 8. P.W.11, Md. Muslim Rain is the informant himself. He has said that at about 5.30 A.M. while he was going to the brick kiln with the break-fast of Ashraf Rain and when he reached near the brick kiln he heard a firing sound and saw Maqbool fleeing away, whereafter he saw his son lying down with a shot in his chest, near a thatched-hut where many people had assembled, He said that the hut belonged to the brick kiln owner and was near the Chimney (Bhatha). According to him, Reyasat and Basir, on being asked, told him that the appellant had asked for water but when Ashraf refused, the appellant had fired upon him. 9. Learned counsel for the appellant pointed out that during cross-examination this witness had said that when he had reached the Chimney, only four to five persons were there, rest having fled away and that he had seen them fleeing away. But in the next breath he also admitted that all the persons had fled away and not a soul was there. It was also pointed out that this witness had said that the people from his village had assembled there after he had reached near his son and, because he was weeping, he had no occasion to talk with any one. He also said that he had gone to the Police Station at 10.00 A.M. but when he proceeded towards the Police Station, in the meantime he had not talked with any one. 10. P.W. 12 is the Investigating Officer who has testified about the place of occurrence which was a brick-room with thatched roof, also having a verandah. Having found the dead body he had also prepared inquest report which, however, was not brought on the record. He also said about seizure list but admitted that he had not sent the blood soaked soil for forensic examination. 11. It is obvious, therefore, that none of the witnesses, whose evidences have been discussed, have claimed to be the eye-witnesses. Evidences of the aforesaid witnesses considered together do not clinch the issue in favour of the prosecution. He also said about seizure list but admitted that he had not sent the blood soaked soil for forensic examination. 11. It is obvious, therefore, that none of the witnesses, whose evidences have been discussed, have claimed to be the eye-witnesses. Evidences of the aforesaid witnesses considered together do not clinch the issue in favour of the prosecution. Though the informant has claimed to have learnt about the incident from P.W. 5 and 10 on his having reached the place of occurrence when he had also seen the appellant fleeing away, a witness has claimed, as already seen, that the parents had reached half an hour after the incident. In so far as having been told by Md. Reyasat Rain and Md. Basir Rain about the incident, Md. Basir Rain has not supported that, and Md. Reyasat Rain, in his evidence, does not appear to have claimed that the informant had made such a query or that he had informed him about the occurrence soon after the informant reached there, instead, he has said (paragraph 2) that after the occurrence, Md. Basir Rain had gone to the house (of informant and others in the same village) but he himself continued sitting there. He said that Md. Basir Rain had called many people from the village. Therefore, the evidence of this witness also indicates absence of Md. Basir Rain from the place of occurrence after the incident had taken place. 12. P.W.5 in his examination-in-chief has said that having reached the place of occurrence he went towards east of the office and sat there. He claimed that the appellant was sitting in the office. He also said that the appellant asked for water from Ashraf and when water was not given to him, the appellant shot at Ashraf with his pistol, in chest, at which he fell down. In this context, learned counsel for the informant has drawn our attention to his evidence in paragraph 7. Here the witness admitted that he and Basir were sitting towards east of the office at the time of occurrence, facing each other. He was facing west, that is, in the direction opposite to the office. This witness said that they were looking at the bricks in the Chimney when he heard the firing sound. That astonished them and, thereafter, he turned towards office where he saw Ashraf dead. He was facing west, that is, in the direction opposite to the office. This witness said that they were looking at the bricks in the Chimney when he heard the firing sound. That astonished them and, thereafter, he turned towards office where he saw Ashraf dead. This witness further admitted that when he saw Ashraf dead, he saw none around the place. He also said that people arrived there two to three minutes thereafter. Sri G.P.Jaiswal, learned Additional Public Prosecutor urged that this piece of evidence should be read with his other evidence in which he had, said about Maqbool firing upon the deceased. 13. In the beginning also this witness had admitted that he was sitting to the east of the office. P.W.5 has been projected as the only eye-witness. To convict the accused on the evidence of sole eye-witness the evidence should be so unblemished as to inspire confidence. No doubt, evidence of a witness has to be considered in entirety, but a breach occurring anywhere has to be noticed. A witness gives a straight narration of the events which are relevant which is tested at the anvil of cross-examination. If the cross- examination succeeds in breaching the reliability of the account given by the witness on a material aspect of the case, thereby raising doubts, benefit of that has to accrue to the accused. In that case, it will be hazardous to rely upon such testimony of sole witness to the occurrence fielded by the prosecution, and to convict the accused. We find, looking at the evidence of this witness in its entirety, that doubts crop up about the claim of the prosecution that this witness had witnessed the actual firing by the appellant upon the deceased which resulted in his death. 14. One other aspect was also pointed out. P.W.1, the doctor who had conducted autopsy has supported that the witness had died of one wound caused by fire arm, which also is his report (Exhibit-1), but he opined that the time elapsed since death was about thirty hours. Death is said to have taken place at about 6.00 A.M. on 20.4.1993 and autopsy, as per evidence of P.W.1, was conducted at 4.30 P.M. on the same day, that is, nine and half hours after the death. Death is said to have taken place at about 6.00 A.M. on 20.4.1993 and autopsy, as per evidence of P.W.1, was conducted at 4.30 P.M. on the same day, that is, nine and half hours after the death. It was argued that though exact time of death was not possible to be given but approximate time could very well be expressed by the doctor, with plus and minus of a few hours. It was pointed out that doctor had not said that the death had occurred within thirty hours, but had said that death had occurred about thirty hours back stating the same in Exhibit-1, which also is not exactly helpful to the prosecution. 15. Keeping in view the evidence on record, we find that the appellant deserved benefit of doubt. That being so, this appeal is allowed and the conviction and sentence awarded to the appellant by the learned lower court are hereby set aside and he is acquitted. Appellant, who is in custody, is ordered to be released forthwith, if not required to be detained in connection with any other case.