Mukhana Yadav and Others vs State of Bihar

R.N. Sahay, J.—These two appeals have been preferred on behalf of five convicts of Sessions Trial No. 24/1985 of 137 /1985 disposed of by 4th Addl. Sessions Judge, Gaya, who by his judgment and order dated 7th February, 1986, convicted the five appellants u/s 302/149, I.P.C. and sentenced them to life imprisonment. Appellant Chandra Yadav has been further convicted u/s 27A of the Arms Act and he has been sentenced to two years imprisonment. Appellants Mukhana Yadav and Samroo Yadav of Cr. App. No. 107/86 died during the pendency of this appeal and hence their appeal stands abated.

Cr. App. No. 109/86 has been preferred by Chander @ Ram Chandra Yadav.

These appellants were charged, tried and convicted for the murder of Mahabir Paswan on 2nd February, 1984 at village Mirakpur, P.S. Wazirganj in the district of Gaya.

The occurrence took place of 6 p.m. on 2-2-1984 at a lonely place in village Mirakpur at a distance of 16 kilometres west to Wazirganj police station. No report of the occurrence was given at the nearest police station by the informant in that evening. Information was given next day at 7.30 a.m. to the police station of the place of occurrence. The I.O. has not stated how he reached the place of occurrence. It is admitted by the witnesses that no attempt was made to contact the nearest police station nor there is any explanation for this inaction when the deceased was own brother of the informant. The fardbeyan of Ramhari Paswan was recorded at 7.30 a.m. on 3-2-1984.

Mahabir Paswan, at the relevant time, was working as a peon in the Minor Irrigation Department, Gaya. His brother Ramhari was also employed as a peon in the Canal Department of Gaya. On the fateful day, both the brothers started from Gaya for their village home Pater, P.S. Wazirganj. After covering Gaya Nawadah road up to village Bhindus, they turned on a Katcha road towards their village. Ramhari went ahead of his brother who remained 100 yards behind him. When Ramhari reached near a culvert in village Mirakpur, he saw Chandra Yadav, Mukhan Yadav, Samroo Yadav, Amarit Yadav and Bhola Yadav and one Nandkishore Yadav sitting at the culvert. The time was 6 p.m. in the evening. Ramhari proceeded further. He heard report of firing and he looked back and found the aforementioned persons assaulting Mahabir Paswan. Appellant Chander Yadav was holding gun. This appellant fired at Mahabir Paswan and he fell down. Appellants Samroo Yadav and Nandkishore Yadav cut his throat with Fasuli, Mahabir Paswan died on the spot. Ramhari was chased by the murderers of his brother. He did not inform any body at village Mirakpur. He decided to go to his village where he informed his relations and other villagers. No villager went to the police station. The dead body of Mahabir Paswan was left unattended at the place where he was killed. Next morning the informed the Choukidar of village Mirakpur. The motive for the crime was that about 3-4- months earlier Chander Yadav had filed a case against his brother.

The learned trial Judge has convicted the appellants 011 the solitary testimony of the informant, Ramhari Paswan (P.W. 10). The other witnesses examined on behalf of the prosecution are hearsay witnesses.

The finding of the trial Judge has been vehementaly assailed by the learned Counsel for the appellants in Cr. App. No. 109/86. Learned Counsel for the appellant in Cr, App. No. 107/86 has adopted the argument of Sri Bamdeo Pandey. It is well settled by the authorities that convict ion can be based on the testimony of a solitary witness but the evidence of such witness must be free from any serious infirmity. In other words, the witness must be absolutely truthful and of sterling quality.

Learned Counsel for the appellants has pointed out several infirmities in the evidence and invited us discredit the evidence of sole eyewitness Ramhari Paswan. It was submitted by the learned Counsel that the occurrence had taken place at 6 p.m. in the first week of February when sun set is at 5.20 p.m. at 6 p.m., it would have been dark. The occurrence, admittedly, was seen by Ramhari Paswan from a distance of 100 yards. Learned Counsel for the appellants submitted that it is difficult to place reliance on his evidence that he had seen the events, as disclosed by him. Learned Counsel for the appellants further submitted that there is strong possibility that the informant was not with his brother at the time of occurrence. There are clinching circumstances which dearly indicate this possibility. The occurrence, according to the informant, happened on the road near Mirakpur but he has stated that the dead body was in a ditch west of the road which he saw in the morning. The I.O. found the dead body in a ditch 10 years of the road. No blood mark was found on the road or between the road and ditch by the Investigating Officer. The informant in his deposition has stated that empty cartridges near the dead-body were also seized but the Investigating Officer states that he did not find any empty cartridge or paper wad. The I.O. also bad not found any cycle there. Admittedly, the occurrence had taken place on road in Mirakpur village. One witness stated that Mirakpur village is ten steps east from the place of occurrence and Bindu village is 20-25 steps north from the place of occurrence. It. is surprising that the informant did not go to village Mirakpur or village Bindu to inform the people there

The informant has deposed that his brother had received his pay cm 2-2-84. His brother came to him at 3 p.m. The daughter of the deceased stated that her father got pay on 3-2-84 and the informant in 1-2-84. There is no evidence as to what happened to the money which the deceased was carrying. The informant has deposed that his office hour is 10 a.m. to 5 p.m. hut he left the office at 3 p.m. after taking permission from S.D.O, Sri Pradeep Kumar for going house. He started for home at 4.30 p.m. I.O. did not verify this fact. It is submitted that the informant was allowed to leave at 3 p.m., there was no reason why he started at 4.30 p.m. Learned Counsel for the appellants has referred the evidence of Doctor Kapildeo Prasad. According to him the time elapsed since death till post-mortem examination was within 36 hours. According to the doctor the injuries were serious. The deceased must, have died immediately after receiving the injuries.

Learned Counsel for the appellants next submitted that unusual conduct of the informant speaks volumes against the prosecution story. The informant, did not inform the Choukidar of his village about this ghastly murder nor did he inform Mukhiya and Sarpanch of the village. The son of the deceased also did not inform the Choukidar. He did not even go to the place of occurrence in the night. The son of the deceased Rambali Paswan stated that there are several houses in the village still he did not go to the place of occurrence. In this connection learned Counsel has placed reliance on State of U.P. Vs. Madan Mohan and Others, .

Learned trial Judge has accepted the evidence of the informant on the footing that the same has been, corroborated by daughter, son and other relations of the deceased. The learned Judge was not right in saying that the evidence of the informant was corroborated in any happens. Learned Counsel placed the evidence of P.W. 4. He has stated that in the west and east of Kachi road near the place of occurrence there is a mill of rice and Suzi where 100 to 200 people work. A guard was posted there. The Investigating Officer did not examine any body. Learned Counsel submitted that the trial Judge failed to take notice of the important circumstances against the prosecution.

According to the learned Counsel, the informant and other persons learnt about the murder in the morning from the Choukidar. It is submitted that Sita Devi, P.W. 1, has stated that three days after the occurrence one Lakhan Yadav was killed in Pater by nexalites. The informant has tried to suppress this fact.

On examination of the submission of the learned Counsel for the appellants in the light of the evidence, in my considered opinion, the case against the appellants in full of doubts. Most damaging evidence is that no information was given to the police till morning. It is impossible to believe that the informant had seen the occurrence or he was with his brother. He left the dead body unattended in the ditch. There is no explanation about the conduct of the informant in not informing any body of village Bindhu or village Mirakpur, which are close to the place of occurrence.

For the reasons stated above, both the appeals are allowed. The conviction of the appellants is set aside and they are acquitted by giving benefit of doubt. They are discharged from the liability of bail-bonds.

P.K. Sarkar, J.

I agree.