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Judgment
The present appeal was preferred against the judgment of
conviction dated 30.04.1993 and order of sentence dated 01.05.1993
passed in Sessions Trial No. 303 of 1987 (arising out of Bairia P.S.
Case No. 14 of 1986) by the learned Sessions Judge, West
Champaran, Bettiah.
By the said judgment the appellant herein has been held
guilty for the offence punishable under section 302 read with section
34 of the Indian Penal Code and was sentenced to undergo rigorous
imprisonment for life and a fine of Rs. 5,000/- was imposed, in default
whereof the appellant was to undergo R.I. for one year.
Short fact of the case is that on the basis of the
fardbeyan of the informant, namely, Ram Deo Bin (father of the
deceased), an FIR vide Bairia P.S. Case No. 14 of 1986 was registered
on 16.03.1986 under sections 302 / 34 of the Indian Penal Code and
section 27 of the Arms Act. It was alleged by the informant that in the
preceding night at about mid-night while he was sleeping at his home
along with his younger son, namely, Anwat Bin and the lantern was
lit, some people came inside the house and he saw in the light of the
lantern that his co-villagers, namely, Shaukat Mian, Bande Mian,
Barkat Mian and Tabdin Mian were carrying gun and three persons
were standing outside, namely, Rustam Mian, Durgami Mian, and
Mahmood Mian who were carrying lathi in their hand. Thereafter,
Shaukat Mian pointed the gun on the chest of the informant and
Bande Mian caught his legs while Barkat Mian and Tabdin Mian
dragged the son of the informant and took him outside the door and
fired from their gun. It has been further stated by the informant that
the accused persons who had caught the informant, left him and went
outside the house whereafter the informant also came out of the house
and saw that his son was writhing. All the accused persons, after
firing gun shots, ran away towards the northern side. When the
informant went near his son he saw sign of injury on his chest from
which blood was oozing out and after sometime the son of the
informant died. After hearing the sound the co-villagers, namely Ali
Hasan Mian, Bindeshwari Sah, Mutlal Bin, Bodha Bin and other
people arrived. The informant disclosed the motive to be old enmity.
The FIR was lodged against seven persons, namely, (1) Shaukat Mian
(since deceased); (2) Barkat Mian; (3) Bande Mian (acquitted); (4)
Tabdin Mian (acquitted); (5) Rustam Mian (acquitted); (6) Durgami
Mian (acquitted) and (7) Md. Mahmood Mian (acquitted).
The case was investigated and thereafter charge sheet
was submitted on 14.12.1986 against all the accused persons and
cognizance was taken by the learned trial court on 23.04.1987.
After completion of supply of police papers, the case
was committed to the court of sessions on 24.07.1987 and charges
were framed under section 302 / 34 of the Indian Penal Code against
the seven FIR named accused persons on 11.08.1988.
During the course of trial, the prosecution produced 11
witnesses to prove the case. P.W. 1 Ali Hasan Mian; P.W. 2 Mandev
Mukhiya and P.W. 3 Dihu Mukhiya had turned hostile. P.W. 4 Moti
Mukhiya was only tendered. P.W. 5 Babu Ram Mukhiya is a hearsay
witness; P.W. 6 Dhruv Narayan Prasad and P.W. 9 Radha Krishna
Prasad had seen the accused persons fleeing away. Ram Deo Bin is
the informant and father of the deceased and he has been examined as
P.W.7. P.W.8 is Suraj Mal Singh; Assistant Sub-Inspector of Police
and he had submitted the charge sheet. Girendra Prasad Mishra is the
Investigating Officer of this case and he was examined as P.W.10.
Nisar Ahmad was examined as P.W.11 and he is a Pharmacist who
has proved the signature and hand writing of the doctor on the post-
mortem report as well as has proved the post-mortem report.
Shri Alok Kumar has argued on behalf of the appellant
and has submitted that the judgment of conviction is liable to be set
aside on the ground that the informant i.e. P.W. 7 had identified the
accused persons in the light of the lantern, however, the lantern was
neither seized nor produced, hence the non-production of the source
of identity creates a doubt. It has also been submitted that the material
witnesses i.e. P.W. 2, P.W.6 and P.W. 9 had seen the accused persons
fleeing away in the dark night and had identified them in torch light.
However, the torch was never produced, hence again the source of
identification having not been produced creates doubt about the entire
incident especially when there is previous enmity between the parties.
The learned counsel for the appellant has further argued that there
were four FIR witnesses, however, one of them i.e. P.W. 1 was only
examined but he had turned hostile and the other three were not
examined. It has also been contended that the appellant along with
two other accused, namely Man Deo Mian and Tabdin Mian were
alleged to have been holding gun on the chest of the informant,
however, the said two accused persons, i.e. Man Deo Mian and
Tabdin Mian have been acquitted while the appellant has been
convicted on the very same set of evidence. It has also been argued
that the entire mode and manner of occurrence is doubtful as can be
culled out from the evidence led by the prosecution. The learned
counsel for the appellant has relied upon a judgment of the Hon''ble
Apex Court reported in (2008) 16 SCC 99 ( Kapil Deo Mandal &
others vs. The State of Bihar ), to buttress the proposition of law that
non-production of the source of identification of the accused persons
before the Court creates a doubt on the identification of the accused
persons.
Mr. Ajay Mishra, the learned Additional Public
Prosecutor appearing for the State has submitted that there is ample
evidence on record to sustain the conviction of the appellant herein.
He has submitted that the testimony of P.W. 7 cannot be questioned
merely on the ground that the lantern was not produced in view of the
fact that he had shown the lantern to the Investigating Officer, hence
the benefit of laxity of the Investigating Officer cannot be given to the
appellant herein.
We have heard the learned counsel for the parties and
besides going through the materials on record have also perused the
evidence. However, it would be relevant to deal with the evidence of
the prosecution witnesses herein below.
The informant of the present case is Ram Deo Bin who
is the father of the deceased also and has been examined as P.W. 7. In
his evidence, P.W. 7 has stated that about three years ago the
occurrence had taken place on Sunday at about 12:00 in the night
while he was sleeping at his house. His son, namely, Anwat Bin was
also sleeping there and lantern was burning. At that place Tabdin
Mian, Barkat Mian, Shaukat Mian, Bande Mian, Rustam Mian,
Durgami Mian and Mahmood came. Out of the said people, Shaukat
Mian, Barkat Mian and Tabdin were carrying gun. Thereafter, Barkat
Mian and Tabdin Mian carried away his son. Shaukat Mian had put
gun on the chest of this witness i.e. P.W.7 while Bande Mian had
caught hold of his legs due to which he could not get up. Durgami
Mian and Rustam Mian were standing there with lathi. His son Anwat
Bin was taken away by force near the heap of straw (poonj) and was
killed there. After hearing the sound of the gun, P.W. 7 had gone near
the heap of straw and saw gun shot injury on the chest of his son and
his son was wreathing. The co-villagers had then arrived there. P.W. 7
has further stated that there was previous enmity with the accused
persons. In paragraph no. 2 of his cross-examination, P.W.7 has stated
that he had recognized Tabdin and Bande Mian from there voice but
not by their face. In paragraph no. 3 of his cross-examination, P.W. 7
has stated that Shaukat Mian had filed one case against Swaroop Bin,
Man Deo Bin and others. Man Deo Bin is real brother and Swaroop
Bin is real nephew of P.W. 7. In paragraph no. 4 of cross-
examination, P.W. 7 has stated that his son (deceased) was wearing
shirt and baniyan which had become blood stained and were given to
the Investigating Officer at the door of the house of the informant.
P.W. 7 has further stated that he had recognized the accused persons
in the light of the lantern and he had shown the lantern to the
Investigating Officer. P.W. 7 has also admitted that at the time of
incident it was a dark night.
P.W. 10 is the Investigating Officer, namely, Birendra
Prasad Mishra who was posted as Officer In-Charge, Bairia Police
Station in the month of March, 1986 and he has stated in his evidence
that the basis of the registration of the present case is the fardbeyan of
informant which is in the writing of A.S.I Hasmi which he recognizes
and the fardbeyan was marked as Exhibit-1. On the basis of the
fardbeyan formal FIR was drawn which has been marked as Exhibit-
It has been stated by P.W. 10 that the witness Hasan Mian had
stated before him that in the torch light he had seen Shaukat Mian,
Bande Mian, Barkat Mian and Tabdin Mian carrying gun as well as he
had seen Rustam Mian, Durgami Mian and Mahmood Mian carrying
lathi while they were fleeing away. P.W. 10 has further stated that he
had recorded the statement of Man Deo Mukhiya who had taken the
name of accused, Bande Mian and Tabdin Mian. P.W. 10 had also
recorded the statement of Dihu Mukhiya who had stated that he had
recognized and seen Shaukat Mian, Barkat Mian, Tabdin Mian,
Rustam Mian, Durgami Mian and Mahmood Mian, going towards
north eastern direction. P.W. 10 had also recorded the statement of
Radhe Krishna Prasad who is said to have recognized Bande and
Tabdin Mian. P.W. 10 in paragraph no. 12 of his cross-examination
has stated that he had only seized blood. In paragraph-15 and 16 of
the cross-examination, he has denied that the witnesses/informant had
either shown torch or lantern to him.
P.W. 6 i.e. Dhruv Narayan Prasad has stated in his
evidence that on 15.03.1986 he was at his home and was awake when
he heard the sound of firing towards the eastern side whereupon he
went to the place of occurrence which is the house of Ram Deo Bin
and saw the accused persons including the appellant herein fleeing
towards the northern side. P.W. 6 is said to have recognized the
accused persons in torch light. P.W. 6 had seen Shaukat and Barkat
carrying gun while the others were carrying lathi. P.W. 6 is said to
have also seen Anwat Bin lying dead and there was gun shot injury on
his chest from which blood was oozing out. In his cross-examination,
P.W. 6 has stated that he had shown the torch to the Police, however,
the Police said that if they needed, they would ask for it. P.W. 9 i.e.
Radhe Krishan Prasad has stated in his evidence that the occurrence
dates back to four years when it was around 12:00 in the mid-night
and he was at the door of his house where arrangements were being
made for Puja and at that moment he heard sound of gun shot from
the house of Ram Deo Bin whereafter he and his son went there and
saw that dacoits were fleeing away and amongst them he could
recognize in torch light some of the accused persons, namely, Shaukat
Mian, Barkat Mian, Rustam Mian, Durgami Mian and Mahmood
Mian. Shaukat Mian and Barkat Mian, who were carrying guns. In
paragraph-8 of his cross-examination, P.W. 9 has stated that his eye
sight is weak. In paragraph no. 19 of his cross examination, P.W. 9
has stated that both he and his son were having torch and when he and
his son lit the torch, they saw the dacoits fleeing away towards the
northern side. In paragraph no. 28 of his cross-examination, P.W. 9
has stated that he is an accused in the case of murder of Nulum Mian,
in which Shaukat Mian is a witness. P.W. 5 i.e. Babu Ram Mukhiya is
a hearsay witness and he has stated in his evidence that upon hearing
hulla he had gone near the Peepal tree where he saw the dead body of
Anwat Bin son of Ram Deo Bin and he was told by Ram Deo that
Shaukat, Mahmood Gani, Barkat and Rustam had killed Anwat Bin
and fled away. This witness has stated in paragraph no. 2 of his cross-
examination that the night was dark. P.W. 1 Ali Hasan Mian has
stated in his evidence that he could not recognize the accused persons
on account of the dark night. This witness was declared hostile.
P.W. 2 Man Deo Mukhiya has stated in his evidence
that when he heard the sound of gun shot he went along with his light
towards the place from where the sound had come and in light he
recognized Shaukat Mian, Barkat Mian, Abdul Gani Mian, Mahmood
Mian and Rustam Mian. Shaukat Mian and Barkat Mian were
carrying gun in their hand. P.W. 2 heard Ram Deo Bin yelling that his
son has been killed by the aforesaid persons. This witness further
stated that Shaukat Mian has filed a case against him for driving away
his daughter. P.W. 2 has further stated that he had given statement to
the Police, however, he had not taken the name of Bande and Tabdin.
On this point, P.W. 2 has been declared hostile. In his cross-
examination, P.W. 2 has stated that when he went to the place of
occurrence he did not recognize the people present there except his
brother Shyam Deo on account of dark night. P.W. 2 has also stated
that he had not shown the torch to the Officer In-Charge.
P.W. 3 is Dihu Mukhiya and he has stated in his
evidence that upon hearing the sound of gun shot firing he went
towards the Peepal tree and saw that the dead body of Anwat Bin was
lying there. However, he could not recognize any person but he was
told by Ram Deo Bin that Shaukat Mian, Barkat Mian, Mahmood
Mian have killed his son and fled away. This witness has stated that
when he reached at the place of occurrence, no accused person was
present there. P.W. 4 is Moti Mukhiya and he has merely been
tendered as a witness.
Suraj Bansh Singh has been examined as P.W. 8 and
he has stated in his evidence that he was handed over the investigation
of this case on 15.07.1986 and after completing the investigation he
had filed the charge sheet. P.W. 11 i.e. Nisar Ahmad is a Pharmacist,
posted at M.J.K. Hospital, Bettiah and he is a formal witness who has
proved the post-mortem report of Dr. P.N. Gupta which has been
marked as Exhibit-3.
After completion of the prosecution evidence the
appellant herein along with the other accused persons were examined
under section 313 of the Code of Criminal Procedure and they denied
to have committed the alleged occurrence.
We have examined the materials on record as well as
perused the evidence led by the prosecution. It is apparent that there
are four material witnesses i.e. P.W. 2 Man Deo Mukhiya, P.W. 6
Dhruv Narayan Prasad, P.W. 7 Ram Deo Bin (informant) and P.W. 9
Radhe Krishna Prasad. While P.W.2, P.W.6 and P.W. 9 have stated to
have recognized the appellant while fleeing away in torch light, the
informant herein i.e. P.W. 7 has stated that he had recognized the
appellant in the light of lantern. However, neither the torch nor the
lantern have either been seized or produced as evidence in the present
case. Hence, non-production of the source of identification of the
accused persons creates a doubt on the case as put forth by the
prosecution. It is also difficult to believe that the appellant was
identified in the torch light and the lantern light on a dark night, in
absence of either seizure or production of either of the said two source
of light/identification. The judgment referred to above by the learned
counsel for the appellant in the case of Kapil Deo Mandal & others
(supra) squarely covers the present case. It would be relevant to quote
paragraph-19 and 27 of the said judgment herein below:-
"19. In the present case, we find from the evidence of
the witnesses examined by the prosecution as already
noticed that the witnesses are related and their relations
were strained with the appellants on account of the
litigation. The incident happened at 11.00 o''clock in the
night. The witnesses have stated that they have seen the
incident and recognised the appellants either in the torch-
light or in the lantern-light which was burning at their
house. It has come in evidence of the witnesses as well as the
Investigating Officer that neither the torch or the lantern
was seized by the I.O. during the course of investigation nor
was it produced before the court. In the circumstances, it is
difficult to believe that the appellants have been identified in
the torch-light or in the lantern-light.
.................In the light of the fact that there was a
previous enmity between the parties and the eye-witnesses
examined are related to the deceased and are interested
witnesses; and that in absence of the lantern or the torch, in
the light of which the incident was said to have been
witnessed, the prosecution case as placed before the court is
full of doubts, and as such the accused-appellants are
entitled for benefit of doubt."
Another aspect of the matter is that the informant i.e.
P.W.7 who is the father of the deceased has admitted previous enmity
with the accused persons, hence false implication of the accused
persons can also not be ruled out. Moreover, there were four FIR
witnesses out of which only one was produced by the prosecution but
he turned hostile, however, the remaining three FIR witnesses were
withheld by the prosecution which also creates doubt about the case
put forth by the prosecution. The incident is said to have taken place
in the mid-night of the previous day of 16.03.1986 but the fardbeyan
was recorded at 12:30 in the afternoon on 16.03.1986 but no
explanation has been furnished for the delay in recording the
fardbeyan, hence the possibility of false implication cannot be ruled
out. Another aspect of the matter is that although the Investigating
Officer is said to have seized the blood but neither the same was
exhibited nor the same was got examined by the Forensic Science
Laboratory, thus prejudicing the defence. The inquest report was
prepared at 11:30 A.M. on 16.03.1986 and only thereafter the
fardbeyan is said to have been recorded on the same day i.e. at 12:30
in the afternoon which also creates doubt about the case of the
prosecution. Furthermore, neither the inquest report has been
exhibited nor the witnesses to the inquest report have been examined
during the course of the trial. As far as the post-mortem report is
concerned, the same has been got proved by a Pharmacist. However,
the doctor who has conducted the post-mortem, has not been
examined resulting in no opportunity being provided to the defence to
cross-examine the doctor which have also seriously prejudiced the
defence. It is a matter of record that though the appellant and two
other persons, namely, Bande Mian and Tabdin Mian were also
holding the gun along with the appellant herein, the said two accused
persons have been given a clean acquittal by the learned trial court
and on the same set of evidence, the appellant herein has been
convicted which further makes the case of the prosecution doubtful on
account of the serious contradiction in the evidence of the prosecution
witnesses.
Upon consideration of the entire evidence it is apparent
that there was previous enmity between the informant and the accused
persons, there is material contradiction in the evidence of the
prosecution witnesses, neither the torch nor the lantern which were the
only source of identification of the accused persons on a dark night
were seized nor exhibited in the present case, the doctor who has
conducted the post-mortem report has not been examined, out of four
FIR witnesses, only one was produced and examined but he turned
hostile, there is no explanation for delay in recording the fardbeyan,
the inquest report was prepared before the fardbeyan was recorded
and the witnesses to the inquest were also not examined. Hence, the
prosecution case as placed before the Court is full of doubts and the
prosecution has not been able to prove the case beyond all reasonable
doubts. As such, the appellant herein deserves to be given the benefit
of doubt.
Accordingly, the judgment of conviction dated
30.04.1993 and order of sentence dated 01.05.1993 passed in Sessions
Trial No. 303 of 1987, is hereby set aside. The appellant herein was
granted bail vide order dated 14.06.1993. Considering the fact that
the appellant has been acquitted, he is hereby discharged from his
liability of bail bond.
The appeal stands allowed.