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2014 DIGILAW 657 (PAT)

State of Bihar v. Marchhu Mian @ Eliyas Mian

2014-06-16

ANJANA PRAKASH, DHARNIDHAR JHA

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ANJANA PRAKASH, J.:–No one appears on behalf of the Respondents on repeated calls. We have requested Smt. Smriti Singh, Advocate to assist us in this matter who is ready to argue the case. 2. This Appeal has been filed against the order and judgment dated 22.12.1990 passed by 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No.7/45 of 1990 by which the Respondents had been acquitted of the charges under Sections 302/149, 307 and 323 IPC. 3. The case of the Prosecution according to the Informant Salamat Hussain (P.W.5) is that in the night of 27 and 28th June, 1989 while he was sleeping outside his house along with his deceased brother Sakuar Ahmad, some one assaulted him with lathi at which he woke up and saw 8-10 persons standing there. His brother Sakur Ahmad tried to flee away but the Respondent no.1 Marchhu Mian @ Eliyas Mian shot at him on account of which he fell down and died. The Informant who also tried to flee was fired at, however, he did not sustain any injury. Among the miscreants, he identified the rest of the Respondents. The next morning the present First Information Report was instituted on the statement of P.W.5 Salamat Hussain. 4. Since the prosecution case was not challenged on its factum but merely on the question of identification and competence of the witnesses let us examine the evidence on this sole aspect. 5. The Prosecution to prove its case examined six witnesses, out of whom P.W.5 Salamat Hussain is the informant and the most important witness. On perusal of his evidence one finds that no doubt in the examination-in-chief he has given out the manner of occurrence as also the identification of the Respondents, however, the learned Trial Judge has noted the demeanour of this witness and opined that the witness had answered all questions after some hesitation and due deliberation. 6. The important point of the evidence of P.W. 5 the Informant is that in paragraph-17, he stated that he had not identified any of the accused persons till the time he had fled about twenty yards from the place of occurrence near a Bargad tree. Further in paragraph-28 he stated that the wife and the sister of the deceased were also present at their house at the time of occurrence but he did not disclose the names of any miscreants to them. Further in paragraph-28 he stated that the wife and the sister of the deceased were also present at their house at the time of occurrence but he did not disclose the names of any miscreants to them. He further accepted in paragraph-13 that on the same night, Dafadar and Chaukidar who were persons of assembly had reached at the place of occurrence on hearsay information and on their statement the police had come to the village but no names had been disclosed to them. Neither the Chaukidar nor the Dafadar have been examined. 7. No doubt the investigating officer (P.W.6) in paragraph-8 has stated that on a rumor he had reached the place of occurrence after recording a Sanha entry but in absence of production of the Sanha entry which alone could testify as to whether the information had been received on rumor or through Chaukidar and Dafadar, this point of his evidence is fit to be rejected. 8. As far its rest of the witnesses, we find P.W.1 Bishundeo Chauhan is a hearsay witness. No doubt he has stated that the informant had disclosed the names of miscreants but in paragraph-10 even he concedes that the Dafadar had come to the place of occurrence and brought the police. There is no explanation as to why the names of the miscreants had not been disclosed by himself or the informant to them. That not having been done his evidence is also not fit to be relied upon, on the point of identification. 9. P.W.2 Quraisa, the daughter of the deceased has been disbelieved by the court below for the very same reason as mentioned above. 10. P.W.3 Bali Yadav also a hearsay witness is not worth reliance on account of non-disclosure of the names of the miscreants at the earliest occasion. 11. P.W.4 is the Doctor who held the postmortem examination report. His evidence supports the factum of occurrence but is irrelevant for the purposes of this Appeal. 12. The relevant portion of the evidence of P.W.6 the investigation officer has been discussed above. 13. In view of the discussions mentioned above, we find no merit in this Appeal and the same is dismissed. 14. It would not have been possible to deliver this judgment but for the assistance of Smt. Smrti Singh, Advocate. 12. The relevant portion of the evidence of P.W.6 the investigation officer has been discussed above. 13. In view of the discussions mentioned above, we find no merit in this Appeal and the same is dismissed. 14. It would not have been possible to deliver this judgment but for the assistance of Smt. Smrti Singh, Advocate. We direct that she should be paid one fee of hearing by the High Court Legal Services Committee. Let first and last page of the present judgment is made over to Smt. Smrti Singh, an Advocate of this Court. ?