Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 98 (PAT)

Gandhi Yadav v. State of Bihar

2012-01-17

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT S.K. Sharma and A.K. Lal. JJ.-The sole appellant Gandhi Yadav is aggrieved by the judgment of conviction and order of sentence dated 05.06.1989 passed by the learned 4th Additional Sessions Judge, Aurangabad in Sessions Trial No. 214/88/53/88 whereby the appellant was held guilty under Sections 302 and 379 of the I.P.C. and has been sentenced to undergo rigorous imprisonment for life under Section 302 of the I.P.C. and rigorous imprisonment for three years under Section 379 of the I.P.C. Both the sentences have ordered to run concurrently. 2. The allegation relates to an occurrence of 29.12.1987. The informant Sidheshwar Singh (PW 4) gave his statement on 29.12.1987 at 5.00 p.m. that at preceding day 3.30 p.m., he was grazing she-buffalo and when reached alongwith Babban Singh (PW 1) at Rokaua Badhar then he noticed a person near the dead body of a lady. The person was turning the dead body upside and down. When the informant and witness reached then some women also reached there and the person, who was turning the dead body upside and down claimed himself to be a police and he ordered the persons assembled there to disperse. All had left the place still the informant alongwith other men with him sat on the Tilha with their she buffalo and were looking towards the dead body and saw that the person was taking the Jitiya from the neck of the dead body and after this the person who was turning the dead body upside and down tried to escape towards the village Mednipur. It was suspected that the person must not be a police constable and so it was suspected that the woman has been killed and her Jitia has been removed and thereafter the accused person was fleeing away. The accused was chased by the informant (PW 4), PW 1 and PW 3 also joined in chasing and that person was caught and, he detailed himself as Gandhi Yadav (accused). The accused did not disclose anything about the identity of the lady. The fardbeyan of the informant resulted into registration of Daudnagar P.S. Case No. 158/87 dated 29.12.1987 against this appellant under Sections 302 and 379 of the I.P.C., which was investigated into and after investigation charge-sheet was submitted under the aforesaid sections. The case has committed to the Court of Sessions where the appellant was put on trial by explaining charges. The fardbeyan of the informant resulted into registration of Daudnagar P.S. Case No. 158/87 dated 29.12.1987 against this appellant under Sections 302 and 379 of the I.P.C., which was investigated into and after investigation charge-sheet was submitted under the aforesaid sections. The case has committed to the Court of Sessions where the appellant was put on trial by explaining charges. The appellant pleaded his innocence and so the trial proceeded. 3. The defence of the appellant was of false implication. 4. In order to substantiate its charge, the prosecution has examined Baban Singh (PW 1), Tapeshwar Singh (PW 2), Krishna Kumar Singh (PW 3), Sidheshwar Singh (PW 4), Thakur Kamla Prasad, I.O. (PW 5), Dr. Chandrasekhar Pd. (PW 6) and Prahlad Pd. (PW 7). 5. PW 7 is the formal witness and he has proved the formal FIR and fardbeyan (Exts. 3 and 4). PW 6 is a doctor, who conducted the autopsy of the dead body of a unknown woman on 30.12.1987 at 12.40 p.m. and has found one incised cut injury on the neck and this was the fatal injury and the prosecution has been able to prove that the death was on account of injury which the deceased has received upon her neck. The killing of a lady has been established. 6. The informant has been examined as PW 4. He has stated that at 3-30 p.m. on 29.12.1987, dead body of an unknown lady was lying in the field. They rushed there. A person was putting upside and down of the dead body. He was asked about his identity then he claimed himself to be a police. He asked the informant and others to disperse. The informant returned to some distance and sat upon a Tilha and from there he saw that the person was taking Jitia from the dead body. He was chased and was brought to police station and that person was put on trial and he was the sole accused. In paragraph 3 of the examination-in-chief, the informant has given go-bye to the allegation against the appellant when he stated that this appellant was not the person who was caught by him. Whatsoever may be the occurrence, but that allegation was the most important fact and the, informant has replied that this appellant was not a person, who was caught. The evidence of informant is full of contradiction. Whatsoever may be the occurrence, but that allegation was the most important fact and the, informant has replied that this appellant was not a person, who was caught. The evidence of informant is full of contradiction. Another witness which has been relied upon by the prosecution is PW 2. He has been brought to the police station alongwith the informant, but he has expressed total ignorance about the occurrence. Therefore, evidence of PW 2 is of no help to the prosecution. 7. PW 1 is the remaining witness of the occurrence, who has stated that he saw the dead body at about 8.00 a.m. This witness has not only contradicted the prosecution version regarding the manner of catching the accused, rather he has stated in paragraph 3 that the person who was facing trial was not the person, who was caught by them and he has not seen taking from any article from the deceased. 8. PW 3 has also not supported the role of the appellant. Therefore, there was no evidence at all to link the appellant with the offence and without any linking material the appellant has been roped in with the offence. 9. In such background of facts narrated above, it is apparent that the evidence against the appellant is not at all available on the record. 10. In the result, the judgment of the conviction and sentence is set aside. The appeal is allowed. The appellant is acquitted from the charges and discharged from the liability of his bail bonds. Appeal allowed.