Jharkhand High Court
Hibaran Yadav vs The State Of Jharkhand on 28 April, 2018
Equivalent citations: 2018 (3) AJR 812, (2018) 3 JLJR 50 (2018) 187 ALLINDCAS 303 (JHA), (2018) 187 ALLINDCAS 303 (JHA)
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
1
Criminal Appeal (DB) No. 1077 of 2007
(Against the judgment and order of conviction and sentence dated 28 th July,
2007 and 31st July, 2007 respectively, passed by learned Additional Sessions
Judge, Fast Track Court, Rajmahal, District- Sahibganj, in Sessions Case No.
213 of 2005/ Sessions Trial No. 140 of 2007)
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1. Hibaran Yadav
2. Nitai Yadav Both sons of Nowa Yadav, residents of Sarkanda, Naya Tola, Panchkathiya, PS- Rajmahal, District- Sahibganj
3. Pappu Yadav
4. Arun Yadav Both sons of Nakul Yadav, residents of Sarkanda, Naya Tola, Panchkathiya, PS- Rajmahal, District- Sahibganj
5. Prabhu Yadav son of Janardan Yadav, resident of Koderjanna, PS- Sahibganj (M), District Sahibganj ... Appellants
-Versus-
The State of Jharkhand ... Respondent
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For Appellants 1, 2 & 5 : M/s. PC. Tripathi, Sr. Advocate, Anshu Dubey,
Manjula Upadhyay, Jai Shankar Tripathi & Nazia
Rashid, Advocates
For Appellants 3 & 4 : Mr. Ashish Kumar, Advocate
For the Respondent : Mr. G. S. Prasad, A.P.P.
For the Informant : Mr. Din Dayal Saha, Advocate
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PRESENT
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE AMITAV K. GUPTA
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Dated: 28th April, 2018
(Oral Judgment)
Per D.N. Patel, A.C.J.:
1. This Criminal Appeal has been preferred by the appellants-accused persons, being aggrieved and feeling dissatisfied with the judgment and order of conviction and sentence dated 28 th July, 2007 and 31st July, 2007 respectively, passed by learned Additional Sessions Judge, FTC, Raj Mahal, District- Sahibganj, in Sessions Case No. 213 of 2005/Sessions Trial No. 140 of 2007, whereby, these appellants have been convicted for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof and sentenced to undergo imprisonment for life, with a fine of Rs.5000/- and in case of default in making payment of fine, to further undergo simple imprisonment for a period of six months.
2. Case of the Prosecution:
On 12.12.04 at 09:05 A.M. the informant Munna Yadav (P.W-6) gave 2 Fardbeyan to the police that his nephew Sanjeev Yadav @ Jiva Yadav (deceased) had built a hut in village Chandipur Diyara in his own land where he used to reside and look after his animals and Kalai Plants. On 10.12.04 at 06:00 P.M. Ram Dayal Mandal, Subhash Rajak, Bechan mandal, Binod Mandal, Tapesh Mistri and Kishan Mandal of village - Chandipur told the informant at Sarkanda Bazar as to why his nephew Jiva Yadav had chased away Ram Dayal Mandal while harvesting Kalai. Then informant replied that Ram Dayal was harvesting the Kalai from the land of Jiva Yadav and when Jiva Yadav saw him harvesting the Kalai, Ram Dayal escaped. On that Kishan Mandal threatened the informant that because of his nephew Jiva Yadav, there is an obstruction to them in harvesting the Kalai and now his nephew Jiva Yadav will no more remain alive. It is further stated that in presence of Sanjay Prasad Yadav of village Sarkanda, Kailash Yadav, Sudhir Yadav son of Mahara Yadav, Sudhir yadav son of Bhola Yadav and Ashok Kumar Chourasiya, threat was given to the informant, by the aforesaid persons that they shall commit murder of Jiva Yadav. On 12.12.04 Pawan Yadav, the younger nephew of the informant when went to the diyara, in the hut he saw the dead body f Jiva Yadav near the Aala with his throat cut. Pawan Yadav then went back home and gave the information to the informant and others. Thereafter informant and his villagers went there and informant made his statement before the police. The informant further claim that these six persons namely (1) Ram Dayal Mandal, (2) Kishan Mandal, (3) Subhash Rajak, (4) Bechan Mandal, (5) Binod Mandal and (6) Tapesh Mistri of village Chandipur P.S. Rajmahal, District Sahibganj have committed the murder of Jiva Yadav for protesting against the theft of Kalai crop by cutting his neck with a sharp weapon.
Altogether thirteen witnesses have been examined by the prosecution:
PW-1 Shiv Shankar Yadav He is the Eye witness of the occurrence. He has proved his signature in his statement recorded U/S 164 of Cr.P.C i.e marked as Ext.1 PW-2 Kamla Yadav He is the father of deceased Sanjiv Yadav @ Jiva Yadav and is Hearsay witness.
PW-3 Sudhir Yadav He is a Hearsay witness. PW-4 Haridas Mandal He is a Hearsay witness. PW-5 Sahdeo Rajak He is the Eye witness of the occurrence. PW-6 Munna Yadav He is the Informant of this case and is uncle of deceased
Sanjiv Yadav @ Jiva Yadav. He is a Hearsay witness. He has proved his signature in the fardbeyan i.e marked as Ext.2 and has also proved his signature in his statement U/S 164 of Cr.p.C i.e marked as Ext.3 PW-7 Lakshmi Yadav He is a Hearsay witness.
PW-8 Dhananjay Mahaldar He is a Hearsay witness. PW-9 Rajendra Sarkar He is a Hearsay witness. PW-10 Shambhu Nath Singh (I.O) He is the Investigating officer of this case. He has proved
the fardbeyan and formal FIR i.e marked as Ext.2/A and 4 respectively. He has proved the carbon copy of Inquest report i.e marked as Ext.5 3 PW-11 Dr. Dhirendra Kumar He is the Doctor who has conducted the Post-mortem of the dead body of Sanjiv Yadav @ Jiva Yadav and has proved the post-mortem report i.e marked as Ext.6 PW-12 Sri Vinod Chandra Pandey He was posted at Rajmahal as Judicial Magistrate 1st Class. He has proved the statement of Munna Yadav, Shiv Shankar Yadav and Sahdeo Rajak recorded U/S 164 of Cr.P.C i.e marked as Ext.3/A, 1/A and 3/B respectively.
PW-13 Robin Mandal He is a Hearsay witness.
3. Arguments canvassed by learned counsel for appellant 1, 2 & 5:
● It is submitted by the learned counsel for the appellants that the prosecution has failed to prove the offence of murder, committed by these appellants, beyond reasonable doubts.
● It is also submitted by the learned counsel for the appellants that there are major omissions, contradictions and improvements in the depositions of prosecution witnesses and this aspect of the matter has not been properly appreciated by the learned trial court, while convicting and sentencing these appellants, and hence, the impugned judgment and order of conviction and sentence, passed by learned trial court, deserves to be quashed and set aside.
● It is further submitted by the learned counsel for the appellants that the so-called eye witnesses, who are PW 1 and PW 5, are, in fact, not the eye witnesses, at all, and as such, they are untrustworthy and unreliable witnesses, in view of the fact that the date of occurrence in this case is 11th December, 2004 and their statements under Section 161 Cr.P.C. have been recorded on 25th December, 2004. These so-called eye witnesses have never raised alarm, never gone to the injured/deceased, never informed anyone about the occurrence and only on 25 th December, 2004 gave their statements under Section 161 Cr.P.C. before the police and on 7th March, 2005 i.e. after more than 85 days before the Magistrate under Section 164 Cr.P.C.
● It is further submitted by the learned counsel for the appellants that over and above, PW 1 in his statement under Section 164 Cr.P.C., has stated that Hibaran Yadav has given a blow whereas PW 5 in his statement under Section 164 Cr.P.C., has stated that Nitai Yadav has given a blow to the deceased and there is only one injury upon the body of the deceased, as per the medical evidence, given by PW 11- Dr. Dhirendra Kumar. Thus, the prosecution is not sure that by whose blow the murder has taken place.
● It is also submitted by the learned counsel for the appellants that looking to the evidence, given by the Investigating Officer- PW 10, especially 4 paragraph nos. 31 and 33 thereof, it is clear that both PW 1 as well as PW 5 have never ran away rather they were available in the village and despite this fact, they have given their statements before the police under Section 161 Cr.P.C. after approximately 13/14 days and before the Magistrate under Section 164 Cr.P.C. after more than 85 days and hence, they are untrustworthy and unreliable witnesses. This aspect of the matter has not been properly appreciated by the learned trial court, while convicting and sentencing these appellants.
● It is also submitted by the learned counsel for the appellants that as per the medical evidence, given by PW 11-Dr. Dhirendra Kumar, there is only one injury on the body of the deceased and hence, no role has been played by rest of the accused persons.
● It is also submitted by the learned counsel for the appellants that looking to the statement of the informant- PW 6, recorded before the Judicial Magistrate, 1st Class, under Section 164 Cr.P.C., it appears that PW 1 informed PW 6 about the occurrence after 2 to 4 days. Thus, PW 1 was very much available in the village and had never gone in a village of West Bengal. It is further submitted that if PW 1 can disclose about the incident to PW 6 after 2 to 4 days of the occurrence, then why he has not given his statement before the police within the said period. ● It is further submitted by the learned counsel for the appellants that if PW 1 has given the names of the accused persons within 2 to 4 days before PW 6, then also why PW 6 has not given these names to the Investigating Officer immediately. Thus, it appears that PW 1 is not a reliable witness. These aspects of the matter have also not been properly appreciated by the learned trial court, while convicting and sentencing these appellants, and hence, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside.
● Placing reliance upon the judgments, rendered by Hon'ble Supreme Court, as reported in AIR 1976 SC 2488 and (1983) 2 SCC 327, learned counsel for the appellants submitted that if the so-called eye witnesses of the occurrence are giving statements at a much belated stage, they are untrustworthy and unreliable witnesses. In this case, PW 3 is the father of PW 1 and PW 1 is so-called eye witness. This PW 1 has not stated anything even to his father (PW 3) for 4 days, about the occurrence. ● It is further submitted by the learned counsel for the appellants that looking to the deposition of PW 3, it appears that in paragraph no.1 of his deposition, PW 3 has stated that his son (PW 1) has told him after four 5 days that Hibaran Yadav and Nitai Yadav have caused injuries upon the body of the deceased whereas, as per the medical evidence, given by PW 11- Dr. Dhirendra Kumar (Paragraph 3 of his deposition), there was only one injury on the body of the deceased, which has resulted into immediate death of the deceased.
Thus, there are material contractions in the depositions of the prosecution witnesses and this aspect of the matter has not been properly appreciated by the learned trial court, while convicting and sentencing the appellants and hence also, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside. ● Lastly, it is submitted by the learned counsel that the appellants are in judicial custody since 2007 i.e. more than ten years.
4. Arguments canvassed by learned counsel for appellant 3 & 4:
● Mr. Ashish Kumar, learned counsel appearing on behalf of appellants 3 and 4, has also adopted the arguments, canvassed by Mr. P.C. Tripathi, Senior Counsel, appearing on behalf of appellants 1, 2 and 5.
5. Arguments canvassed by the learned counsel for the State:
● It is submitted by learned A.P.P. appearing on behalf of the State that the case of the prosecution is based upon the evidence of more than one eye witness, who are PW 1 and PW 5. These eye witnesses have clearly narrated the role played by these appellants and there are no major omissions or contradictions in the depositions of the prosecution witnesses.
● It is also submitted by the learned A.P.P. that the medical evidence, given by PW 11- Dr. Dhirendra Kumar, is corroborative to the depositions of PW 1 and PW 5.
● It is further submitted by the learned A.P.P. that PW 1 is an eye witness to the occurrence and he has identified the appellants at the place of occurrence from a distance, in the light of bonfire. As per PW 1, Hibaran Yadav has given first blow and thereafter, another blow was given by Nitai Yadav, by sharp cutting instrument. Statement of this PW 1 under Section 164 Cr.P.C. was also recorded by PW 12, Judicial Magistrate, 1st Class, which is Ext. 1/A. It is submitted that as per the statement of PW 1, recorded under Section 164 Cr.P.C., Hibaran Yadav and Nitai Yadav have given blows upon the body of the deceased.
● It is further submitted by the learned A.P.P. that PW 5 is also an eye witness to the occurrence and as per this witness, Hibaran Yadav and Nitai Yadav have caused injuries upon the body of Sanjeev @ Jiwa 6 Yadav (deceased). Statement of PW 5 was also recorded under Section 164 Cr.P.C. by learned Judicial Magistrate- PW 12 and as per his statement, recorded under Section 164 Cr.P.C., Nitai Yadav has first given a blow of Hasua (sickle) upon the body of Sanjeev Yadav @ Jiwa Yadav (deceased).
● Learned A.P.P. submitted that looking to the depositions of other prosecution witnesses, it appears that the prosecution has proved the offence of murder, committed by these appellants, beyond reasonable doubts. These aspects of the matter have been properly appreciated by the learned trial court and hence, this appeal may not be entertained by this Court.
6. R E A S O N S:
Having heard learned counsels for both the sides and looking to the evidences on record, we hereby quash and set aside the judgment and order of conviction and sentence dated 28th July, 2007 and 31st July, 2007 respectively, passed by learned Additional Sessions Judge, Fast Track Court, Rajmahal, District- Sahibganj, in Sessions Case No. 213 of 2005/ Sessions Trial No. 140 of 2007, mainly for the following reasons:
(i) It is a case of the prosecution that PW 6- Munna Yadav informed the police on 12th December, 2004 at about 9.05 am that on the previous day i.e. 11th December, 2004, during night hours, murder of Sanjeev @ Jiwa Yadav has taken place and he has raised doubt about Ram Dayal Mandal, Subhash Rajak, Bechan Mandal, Binod Mandal, Tapesh Mistri and Kishan Mandal, who had given threat on 10th December, 2004 that his nephew Sanjeev @ Jiwa Yadav has built a hut and is residing there with cattle and is watching Kalai crops. On the basis of this information, offence was registered with Rajmahal Police Station.
However, during investigating it came to light that the aforesaid named accused persons have not committed the offence rather the appellants, who were not named in the First Information Report, are the culprits of the offence, which is evident from the statements of the informant as well as eye witnesses, recorded under Section 164 Cr.P.C. Thereafter, statements of several witnesses were recorded, chargesheet was filed against these appellants, case was committed to the court of sessions being Sessions Case No. 213 of 2005/ Sessions Trial No. 140 of 2007 and on the basis of the evidence, given by PW 1 to PW 13, the learned trial court convicted and sentenced these appellants for causing murder of Sanjeev @ Jiwa Yadav and hence, the present Criminal Appeal has 7 been preferred by them.
(ii) Case of the prosecution is based upon mainly two so-called eye witnesses, who are PW 1 and PW 5. PW 1 is cousin brother of the deceased.
(iii) Looking to the deposition, given by PW 1, it appears that this witness has given statement before the police under Section 161 Cr.P.C. on 25th December, 2004 after approximately 14 days of the occurrence, since the occurrence has taken place, during the night hours of 11th December, 2004.
(iv) It further appears that due to fear, PW 1 ran away to a village of West Bengal, as stated in his deposition, but, looking to the deposition of Investigating Officer- PW 10 (Paragraph no.21 thereof), it appears that this witness has never stated in his statement under Section 161 Cr.P.C. before the Investigating Officer that he had gone to a village of West Bengal, after the occurrence took place.
Thus, this witness has never stated before the Investigating Officer the reason for his belated statement.
(v) Moreover, Looking to the deposition of PW 1, it appears that neither he raised any alarm, nor went to the injured/ deceased, nor informed anyone about the occurrence and has given his statement under Section 161 Cr.P.C. before the police after approximately 14 days.
(vi) PW 3- Sudhir Yadav is the father of PW 1- Shiv Shankar Yadav. Looking to the deposition of PW 3 also, it appears that this PW 1 has not stated immediately to PW 3 about the occurrence. Moreover, there is also a material discrepancy in between the statement of PW 1 before PW 3 that Hibaran Yadav and Nitai Yadav cut the throat of Sanjeev @ Jiwa Yadav whereas, as per the medical evidence of PW 11- Dr. Dhirendra Kumar, who has found only one injury on the body of the deceased.
Moreover, looking to the statement under Section 164 Cr.P.C. of this PW 1, it appears that he has stated that after the occurrence, he went to his residence and informed about the occurrence after 4/5 days to Munna Yadav- PW 6. Thus, the story of his going to a village of West Bengal immediately after the occurrence, is a material improvement. The date of occurrence is 11th December, 2004, statement under Section 161 Cr.P.C. of this PW 1 is given on 25th December, 2004 and the statement of this witness under Section 164 Cr.P.C. is dated 7th March, 2005. If Munna Yadav- PW 6 was informed by PW 1 after 2 to 4 days of the 8 occurrence, about the role played by these appellants, then why Munna Yadav has kept mum for such a long period and has conveyed the names of these appellants, only on 25th December, 2004 to the police.
Thus, it appears that PW 1 is an untrustworthy and unreliable witness and looking to the totality of evidences on record, this witness- PW 1 is not an eye witness to the occurrence, at all. This aspect of the matter has not been properly appreciated by the learned trial court, while convicting and sentencing these appellants.
(vii) Another star witness of the prosecution is PW 5- Shahdeo Rajak. He is also projected, by prosecution, as an eye witness to the occurrence.
We have perused the examination-in-chief and the cross- examination of this witness along with the deposition, given by PW 10- Investigating Officer, to check the material omissions, material contradictions and material improvements. Looking to the deposition, given by PW 5, it appears that his statement under Section 161 Cr.P.C. was recorded on 25th December, 2004 i.e. approximately after 14 days of the occurrence. Further, his statement under Section 164 Cr.P.C. was recorded on 7th March, 2005 i.e. approximately after more than 85 days of the occurrence. With the aforesaid background, if we look at the evidence, given by PW 5, it appears that he has narrated in his statement under Section 164 Cr.P.C. that Nitai Yadav has caused injury upon the body of the deceased first whereas, as per PW 1, Hibaran Yadav has given first blow on the body of the deceased. Thus, the prosecution is not sure who has caused murder of the deceased, whether Hibaran Yadav or Nitai Yadav, because as per the medical evidence of PW 11 (Paragraph 3 of his deposition), there is only one injury upon the body of the deceased, which has resulted into his death. Moreover, this witness-PW 5 has materially improved his version that he had gone to Village- Kutum Tali and that is why, at a much belated stage, he has given his statement before the police whereas, looking to Paragraph 33 of the deposition of PW 10- Investigation Officer, it appears that this fact of going Kutum Tali and returning from there after 10 days, was never stated before the Investigating Officer. Thus, it appears that this witness was very much available in the village and despite this fact, he has not given his statement, immediately after the occurrence, before the Investigating Officer. Moreover, looking to the deposition of this PW 5, it appears that he informed about the whole occurrence to PW 4- Haridas Mandal 9 whereas, looking to the deposition of PW 4, it appears that PW 5 was very much available in the village and when he met PW 5 after 3 days, he (PW 5) informed him about the occurrence. Thus, as per deposition of PW 4, PW 5 was very much available in the same village and had never gone to Village- Kutum Tali. Thus, this PW 5 is also an untrustworthy and unreliable witness, looking to the depositions of PW 10 and PW 4. This witness- PW 5 has given his statement under Section 161 Cr.P.C. before the police after 14 days and under Section 164 Cr.P.C. before the Judicial Magistrate after more than 85 days of the occurrence. Thus, looking to the totality of the evidences on record, this witness- PW 5 is not an eye witness to the occurrence, at all.
(viii) Looking to the medical evidence, given by PW 11- Dr. Dhirendra Kumar, who has carried out the post-mortem examination of the body of the deceased (Ext. 6), it appears that there is only one injury on the body of the deceased, which has resulted into his death and, thus, the narration of the occurrence, given by PW 1 and PW 5, that the appellants Hibaran Yadav and Nitai Yadav have caused injuries upon the body of the deceased, is not corroborated by the medical evidence, as there are no two injuries on the body of the deceased. Moreover, looking to the statements of PW 1 and PW 5, it appears that one witness i.e. PW 1 says that Hibaran Yadav has given the first blow upon the body of the deceased whereas PW 5 says that Nitai Yadav has given the first blow upon the body of the deceased. Thus, there is a material difference in the evidences of PW 1 and PW 5, to be read with the evidence, given by PW 11- Dr. Dhirendra Kumar.
(ix) We have also carefully gone through the deposition of the Investigating Officer- PW 10. Looking to paragraph nos. 21, 26, 29 and 33 of his deposition, it appears that PW 1 and PW 5 are untrustworthy and unreliable witnesses and they are not eye witnesses to the occurrence, at all.
(x) It has been held by the Hon'ble Supreme Court in the case of State of Orissa v. Brahmananda Nanda, reported in AIR 1976 SC 2488 in paragraph 2, which reads as under:
"2. The entire prosecution case against the respondent rests on the oral evidence of Chanchala (PW 6) who claimed to be an eyewitness to the murder of Hrudananda, one of the six persons alleged to have been killed by the respondent. The learned Additional Sessions Judge believed her evidence, but the High Court found it difficult to accept her testimony. The High Court has given cogent reasons for rejecting her evidence and we find ourselves completely in agreement with those reasons. We have carefully gone through the evidence of this witness, but we do not think we can place 10 any reliance on it for the purpose of founding the conviction of the respondent. The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of June 13, 1969 and yet she did not come out with the name of the respondent until the morning of June 15, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than June 15, 1969 on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the clubhouse which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on June 14, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to ASI Madan Das and should have waited till the morning of June 15, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case."
(Emphasis supplied)
(xi) It has been held by the Hon'ble Supreme Court in the case of Ganesh Bhavan Patel v. State of Maharashtra, reported in (1978) 4 SCC 371 in paragraphs 15 and 47, which read as under:
"15. As noted by the trial court, one unusual feature which projects its shadow on the evidence of PWs Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161 of the CrPC were recorded on the following day. Welji (PW 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, be itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case.
47. All the infirmities and flaws pointed out by the trial court assumed importance, when considered in the light of the all-pervading circumstance that there was inordinate delay in recording Ravji's statement (on the basis of which the "FIR" was registered) and further delay in recording the statements of Welji, Pramila and Kuvarbai. This circumstance, looming large in the back-ground, inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion.
(Emphasis supplied)
(xii) It has been held by the Hon'ble Supreme Court in the case of Maruti Rama Naik v. State of Maharashtra, reported in (2003) 10 SCC 11 670 in paragraph 7, which reads as under:
"7. We will now consider whether the evidence of PW 4 in any manner corroborates the evidence of PW 3 or for that matter the said evidence of PW 4 is acceptable at all. PW 4 has admitted that he is a close relative of deceased Krishna Mahada Naik. While he had noticed the incident of the attack on the deceased Krishna Mahada Naik, he has not spoken in any manner about the subsequent attack which includes the attack on PW 3. According to this witness, at the relevant time, he was going to the bus-stand to board a bus to reach his factory where he was working when he saw the assault on the deceased Krishna Mahada Naik by the assailants including the appellants. Having noticed the incident, he did not go to any one of his relatives' house to inform about the attack in question. He knew at that point of time that Krishna Mahada Naik was injured and still alive, still he did not make any effort whatsoever to get any help to shift the injured to a hospital. According to this witness, even after seeing Krishna Mahada Naik lying injured in a critical condition, he without informing anybody about the incident, went to the bus-stand, took a bus and went to his factory and even at that point of time, he had sufficient opportunity to inform the other people about the incident or for that matter, even the police which he did not do. It is interesting to note from the evidence of this witness that even though he had an opportunity of approaching the police, he did not go to them because he did not know whom he had to inform about the incident in the police station. The witness further states that he went to the factory, worked for a while, took leave from the factory and went back home. Even after reaching home, he did not bother to find out from anybody there about the fate of the victims nor did he inform anybody about he having witnessed the incident. It is only at about 6 p.m. when PW 21 recorded the statement for the first time, he came out with the fact of having witnessed the incident. It is rather surprising as to how and in what manner, PW 21 came to know that PW 4 was a witness to the incident. The prosecution has also failed to explain the delay in recording the statement of this witness, therefore, bearing in mind the conduct of PW 4 in not informing anybody about his having witnessed the incident and the delay in recording his statement makes us hesitant to place any reliance on his evidence. The only other piece of evidence relied on by the prosecution to support its case against these two appellants is that of recovery which even according to the prosecution, was made from a place which was not in the exclusive possession of the appellants and the said place was easily accessible by other people and also the fact that recovery was made almost 9 days after the incident in question, in our opinion, this piece of evidence also would not at all be sufficient to base a conviction of these appellants without further acceptable corroboration. Therefore, we are of the opinion that these appeals must succeed. The conviction and sentence imposed on the appellants are set aside and the appeals are allowed.
(Emphasis supplied) In view of the aforesaid decisions, if any eye witness is giving statement under Section 161 Cr.P.C. before the Investigating Officer, after several days of the occurrence, without any plausible reason for giving such statement at a belated stage, then he is not an eye witness, at all, and, thus, he is an untrustworthy and unreliable witness. In the present case, occurrence has taken place on 11th December, 2004 and PW 1 & PW 5, the so-called eye witnesses, have given their statements before the police under Section 161 Cr.P.C. on 25 th December, 2004 and under Section 164 Cr.P.C. on 7th March, 2005. These witnesses have never raised alarm, never gone to the injured and they are giving their statements at a much belated stage. The aforesaid facts make these 12 witnesses untrustworthy and unreliable and, thus, they are not the eye witnesses to the occurrence, at all. These aspects of the matter have not been properly appreciated by the learned trial court, while convicting and sentencing the appellants.
(xiii) As per the medical evidence, given by PW 11- Dr. Dhirendra Kumar, the injury narrated in the post-mortem report and the cause of death, reads as under:
Ante-mortem Injury: (1) Neck through and through cut- slight skin attached in front of chest connecting head and trunk.
(1) By sharp cutting instrument.
Cause of death: C/R failure due to shock and haemorrhage. Time since death: Within 48 hours.
(xiv) Thus, The prosecution has failed to prove the offence, committed by these appellants, beyond reasonable doubts, as there are major omissions, contradictions and improvements in the case of the prosecution, by the prosecution witnesses.
6. As a cumulative effect of the aforesaid evidences on record and judicial pronouncements, we hereby quash and set aside the judgment and order of conviction and sentence dated 28th July, 2007 and 31st July, 2007 respectively, passed by the Additional Sessions Judge, Fast Track Court, Rajmahal, District- Sahibganj, in Sessions Case No. 213 of 2005/ Sessions Trial No. 140 of 2007.
7. Accordingly, this Criminal Appeal is allowed and disposed of.
8. The appellants namely (1) Hibaran Yadav, (2) Nitai Yadav, (3) Pappu Yadav, (4) Arun Yadav and (5) Prabhu Yadav, who are in custody, shall be released forthwith, if not required in any other case.
(D.N. Patel, A.C.J.)
(Amitav K. Gupta, J.)
Jharkhand High Court, Ranchi
Dated: 28th April, 2018
A.K. Verma/ A.F.R.