Jharkhand High Court
Anil Yadav vs The State Of Jharkhand on 31 January, 2018
Equivalent citations: 2018 (2) AJR 730, (2018) 184 ALLINDCAS 692 (JHA)
Author: H.C. Mishra
Bench: H.C. Mishra, A.K. Choudhary
-1- Cr. Appeal (DB) No.994 of 2009
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.994 of 2009
(Against the Judgment of conviction dated 9 th September 2009 and Order of
sentence dated 15th September 2009, passed by the 1st Additional Sessions
Judge, Godda, in S.T. No. 80 of 2004 / 393 of 2009.)
1. Anil Yadav
2. Umesh Yadav
3. Raju Yadav
4. Sankar Yadav
5. Dhananjay Yadav
6. Mannu Yadav
7. Shatru Yadav .... Appellants
Versus
The State of Jharkhand ..... Respondent
PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE A.K. CHOUDHARY
.....
For the Appellants : Mr. A.K. Kashyap, Sr. Advocate
Mr. Ranjan Kumar Singh, Advocate
For the State : Mr. Krishna Shankar, APP
.....
Reserved on : 20.01.2018 Pronounced on : 31.01.2018
H.C. Mishra, J.:- Heard learned senior counsel for the appellants and learned counsel for the State.
2. The appellants are aggrieved by the Judgment of conviction dated 9th September 2009 and Order of sentence dated 15th September 2009, passed by the learned 1st Additional Sessions Judge, Godda, in S.T. No. 80 of 2004 / 393 of 2009, whereby all the appellants have been found guilty and convicted for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life and fine of Rs.5,000/- each for the said offence.
3. The case relates to triple murder, and the prosecution case was instituted on the basis of the fardbeyan of Manju Devi, the daughter-in-law of one of the deceased Chutari Matha, which was recorded on 17.11.2003 at 13:30 hours, at Godda Bhagalpur Road near Kauri-bahiyar turning. It is stated in the fradbeyan that on the same day, in the morning, the informant along with her sister-in-law (gotni) Sanju Devi were going to Godda on a rickshaw for the treatment of her grandson Chhotu. Her father-in-law Chutari Matha, her son Rajesh Yadav and bhagina Lalu Yadav, were
-2- Cr. Appeal (DB) No.994 of 2009 proceeding ahead on a motorcycle, as they had also to appear in Godda Court. When they had reached near Kauri-bahiyar turning, she saw that her villagers Raju Yadav, Umesh Yadav, Anil Yadav, Sindho Yadav, Pappu Yadav, Sankar Yadav, Satru Yadav, Mannu Yadav, Dhananjay Yadav, Pradeep Yadav, the daughter's son of Sindho Yadav, Ravi Yadav, the samdhi of Sindho Yadav, and Lobin Yadav, came there armed with lathi, garasha, pistol and bombs and they hurled bombs on the motorcycle, due to which, Chutari fell down and thereafter Umesh, Raju and Anil assaulted him by several bombs causing his death at the spot. Lalu and Rajesh, who were also on the motorcycle, started fleeing away in opposite directions and they were chased by the accused persons. Lalu was apprehended nearby and he was also assaulted by bomb and firearm causing his death at the spot, whereas Rajesh was chased up to some distance and he was also assaulted by bomb and firearm and his dead body was thrown in a nearby pond. She has stated that there were 15 to 20 sounds of bombs and firearm and both these ladies also started screaming and fleeing away towards Pakuria village. She stated that all the accused persons fled away from the spot on foot. As to the cause of occurrence, she has stated that about two to three years ago, Pitamber Yadav and Mahesh Yadav of her village were murdered, in which her father-in-law Chutari Matha, her brothers-in-law Kishan Yadav and Kesho Yadav, her son Rajesh Yadav and bhagina Lalu Yadav were also accused and they were in jail. Sindho Yadav used to give threats that as soon as they would come out from jail, they would take the revenge of murder by murdering them. About one month ago, her father-in-law Chutari Matha, her son Rajesh and bhagina Lalu had been released from jail custody and they were murdered by the accused persons. On the basis of the fradbeyan given by the informant Manju devi, Godda Town P.S. Case No.301 of 2003, corresponding to G.R. No.1181 of 2003 was instituted and investigation was taken up. After investigation, the police submitted the charge-sheet in the case against seven accused appellants for the offences under Sections 302 / 34 of the Indian Penal Code, Section 27 of the Arms Act and Sections 3 and 4 of the Explosive Substance Act, and final form was submitted against the others.
4. After commitment of the case to the Court of Session, the charge was framed against all the accused appellants for the offences under Sections 302 / 34 of the Indian Penal code and Section 27 of the Arms Act, and upon
-3- Cr. Appeal (DB) No.994 of 2009 the accused persons' pleading not guilty and claiming to be tried, they were put to trial. No charge was framed for the offences under Sections 3 and 4 of the Explosive Substance Act.
5. In course of trial, the prosecution has examined fourteen witnesses. The I.O has not been examined in the case. As such, the formal FIR, the fardbeyan and the inquest reports have been proved by a formal witness PW-14 Ram Ashis Rai, as Exts.-3, 4 and 5 series respectively, who has stated that he has no knowledge about what was written in those documents. PW-1 Bhavesh Yadav, PW-2 Sambhu Yadav, PW-3 Kampotar Yadav and PW-4 Janardan Yadav have not stated anything about the occurrence, nor they have named the accused persons. PW-13 Sachida Nand Yadav had only seen the dead bodies of the deceased and he has proved his signature on the inquest report of one dead body, which was marked Ext. 1/ 5.
6. PW-7 Manju Devi is the informant of the case. She has stated that the occurrence had taken place about two years ago on a Monday at about 10 to 11 AM in the morning. She was going to get her grandson treated. Rajesh and Lalu were going on a motorcycle ahead and she was along with her grandson on a rickshaw. When she reached near Kauri-bahiyar, three persons who were on motorcycle, namely Rajesh, Lalu and her father-in-law Chutari, were assaulted by the accused persons facing the trial and several other persons. She has stated that there were 10, 20-25 persons. Chutari was murdered on the road itself, whereas, Lalu was assaulted in an agriculture field by the side of the road, by Raju, Umesh and Anil and Rajesh was also assaulted by Raju, Anil, Umesh, Dhananjay, Pappu, Satru, Manu, Sankar etc. and he was thrown in the pond after killing him. Thereafter, the accused persons fled on their motorcycles. She has stated that the occurrence was also seen by Sanju Devi, Sitaram and Jitu. The police came to the place of occurrence and took the dead bodies to the Police Station. She has stated that she gave her fardbeyan, which was read over to her and she put her thumb impression, and at the Police Station and her gotni, Sanju and Sitaram were also present and they had also put their thumb impressions on the fardbeyan. She has identified the accused persons in the Court. In her cross-examination, she has stated that she had also gone to the Police Station along with the dead bodies and her statement was also recorded by the police. She has stated that Chutari had three sons, Bishnu, Kishan and Keshav, out of whom Bishnu was murdered earlier. Rajesh was her son. She
-4- Cr. Appeal (DB) No.994 of 2009 has stated in her cross-examination that she had no knowledge about the murder of Pitamber and Mahesh and she had not stated before the police that they were murdered. She has also stated that she had no knowledge that her son and other persons as well as Kesho were in jail in connection with the murder of Pitamber and Mahesh. She has also denied the suggestion that she was concealing these facts. She was also cross-examined about some other murders, in which, her family members were convicted, but she has denied the knowledge about those cases. In her cross-examination, she has stated that she had remained at the place of occurrence until the arrival of the police. She has stated that she did not know Ranjan Manjhi, and she has denied the suggestion to conceal this fact. She has also admitted that on the date of occurrence, her brothers-in-law Kishan and Keshav were in jail and she has stated that she had not met them on the day of occurrence. She has further stated in her cross-examination that there was no rickshaw in her village and rickshaws are available at Dumaria Chowk. She has stated that she had no knowledge, whether the rickshaws were available from her village up to Dumaria chowk and she has denied the suggestion that on the date of occurrence, she was going on the rickshaw of Ranjan from her village Motia. She has also denied the suggestion that she was coming on that rickshaw and had reached Dumaria chowk at about 12:00 PM and thereafter she had gone towards Godda. She has denied the suggestion that she and Sanju had not seen any occurrence and has also denied the suggestion to have given false evidence.
7. PW-9 Sanju Devi is the other daughter-in-law of the deceased Chutari Matha. She has also stated that the occurrence had taken place about two years ago at about 10:30 AM in the morning. She was going to Godda on a rickshaw along with her gotni Manju and Chotu, from her village Motia. Her brother Sitaram was also going on a cycle. When they reached near Pakuria, Chutari, Rajesh and Lalu, who were going on a motorcycle ahead, were murdered by Umesh, Anil, Pappu, Sindho, Dhananjay, Sankar, Manu, Satru by bombs, firearm and other weapons. Chutari was murdered on the road. Thereafter Lalu was murdered by firearm, bombs and garasha by the accused persons in a paddy field by the side of the road, and Rajesh was murdered and his dead body was thrown in a pond by the accused persons. Thereafter, the police came and took the dead bodies on a tractor. This witness, her gotni Manju, Sitaram and Jitendra also went to the Police
-5- Cr. Appeal (DB) No.994 of 2009 Station. Manju lodged the case at the Police Station. She has identified all the accused in the Court. In her cross-examination, she has stated that Lalu, Chutari and Rajesh had been released from jail few days ago. This witness had stated in her cross-examination that she knew Rajesh Manjhi (should be Ranjan), who was a rickshaw puller, with whom there was enmity. She has denied the suggestion that on the date of occurrence, they were going on his rickshaw. She has also denied the suggestion to have given the statement to the police that they were going on the rickshaw of Ranjan Manjhi to Godda and she has denied the suggestion that there was no enmity with Ranjan. In her cross-examination, this witness has further stated that she was not knowing Pitamber and Mahesh and she has denied the suggestion that Chutari, Keshav and Kishan were convicted for their murder. This witness has stated that Sitaram is his brother, who had come to her village on the previous day and on the date of occurrence, she along with Manju, Chotu and Sitaram had started from house at the same time. Sitaram was on the cycle. She has denied the suggestion that they were going on the rickshaw of Ranjan and she was informed at the Dumaria chowk about the occurrence, whereupon, they started crying. She has also stated that her statement was recorded at the Police Station. She has denied the suggestion to have given false evidence.
8. PW-6 Ram Prasad Yadav has also supported the case as an eyewitness. He is the grandson of Chutari Matha and son of Kesho Yadav. This witness has stated that occurrence had taken place on 17.11.2003 at about 10:30 AM. At the time of occurrence, Chutari Matha, Lalu Yadav and Rajesh Yadav were going on a motorcycle and this witness was going on cycle behind them. When they reached near Kauri-bahiyar turning, he saw the accused persons, out of whom, Anil Yadav and Raju Yadav hurled bombs, killing Chutari Matha on the road. Thereafter, they chased Lalu Yadav and he was also assaulted by bomb and murdered. Thereafter, they chased Rajesh Yadav and he was also assaulted by firearm and garasha by the accused persons and he also died at the spot. The ladies, who were coming on the rickshaw, also saw the occurrence. This witness has stated that police arrived at the place of occurrence and took the dead bodies on a tractor to the Police Station, where the statements of the witnesses were recorded. He has also identified the accused persons in the Court. In his cross-examination, this witness has stated that Chutari Matha was his
-6- Cr. Appeal (DB) No.994 of 2009 grandfather and he has denied the suggestion to have given the statement before the police that at 12:00 PM, he was in his house.
9. PW-8 Sitaram Yadav and PW-10 Jitendra Yadav are the brothers of Sanju Devi and these witnesses have also supported the prosecution case as eyewitnesses to the occurrence. PW-8 Sitaram has stated that he was coming with the ladies on a cycle and he had also seen the occurrence. This witness has supported the prosecution case almost in the same manner as deposed by this other witnesses. He is also the witness to the inquest reports of the dead bodies and he has identified his signature and the signatures of the other witnesses on the inquest reports, which were marked Exts.-1 to 1/3. In his cross-examination, this witness has denied the suggestion to have given the statement before the police that he had only heard about the occurrence and thereafter, he reached the place of occurrence, where he was informed that unknown persons had committed the murder. He has denied the suggestion to have given false evidence. Similarly, PW-10 Jitendra Yadav has also supported the prosecution case stating that at the time of occurrence, he was near the place of occurrence, when he heard the sound of bombs and when he was going towards the place of occurrence, he saw ten to twelve persons, including these accused persons, fleeing away. Though this witness has named the accused persons in his evidence, but in the Court, he could not identify the accused persons by name. He has also stated that he had seen the dead bodies with bomb injuries. He has stated that inquest report was prepared in his presence, on which, he also put his signature and the same was marked Ext.-1/4 on his identification. In his cross-examination, this witness has also denied the suggestion to have given the statement before the police as hearsay witness. He has denied the suggestion to have stated before the police that he was at Godda and he heard about the occurrence at Godda, and thereafter he came to the place of occurrence and came to know about the occurrence. He has denied the suggestion to have given false evidence.
10. PW-5 Ranjan Manjhi is a rickshaw puller. This witness has stated that on the day of occurrence, he was at his village chowk with his rickshaw, where Chutari Matha came and asked him that his daughters-in-law had to go to Godda hospital and asked him to take them to the hospital. After about one hour, he went to the house of Chutari Matha and thereafter, after about one to one and half hours, he was bringing the daughters-in-law of Chutari Matha to Godda, and when they reached near Dumaria Chowk at
-7- Cr. Appeal (DB) No.994 of 2009 about 12:00 PM, they heard the rumour that Chutari Matha had been killed. Both his daughters-in-law started crying on the rickshaw and they asked him to drive the rickshaw speedily, whereupon, they reached Kauri-bahiyar at about 1:00 PM and saw the dead body of Chutari Matha. Both the daughters-in-law started weeping and inquiring from the persons nearby as to who had committed the murder, but none present there could give any information. Then both the daughters-in-law asked him to take them to jail, where they met Kishan Yadav and Keshav Yadav. Thereafter, they asked him to take them to the Police Station. He took them to the Police Station and went away. He has stated that his statement was recorded by the police and he has identified the accused persons, stating that they are his villagers. Thus, this witness examined by the prosecution has stated nothing about the occurrence and according to this witness, even PW-7 Manju Devi, the informant, and PW-9 Sanju Devi, the daughters-in-law of the deceased Chutari Matha, are not the eyewitness to the occurrence.
11. PW-11 Birendra Kumar Choudhary is a shopkeeper. This witness has stated that the occurrence had taken place at about 11 to 11:30 AM in the morning and he was in his shop at Dumaria Chowk. He heard that Chutari was murdered. Thereafter, he saw two ladies going on rickshaw. He has stated that he had neither gone to the place of occurrence, nor he had seen the occurrence.
12. PW-12 is Dr. Satendra Mishra, who had conducted the post mortem examinations on the dead bodies of the deceased on 18.11.2003 and found the ante-mortem injuries on the dead bodies of the deceased persons.
On Chutari Matha, he found the following injuries:-
Almost whole of the face and trunk completely damaged and destroyed.
External Injuries (Ante-mortem)
(i). Extensive lacerated wound involving almost whole of the body (Trunk) above umbilicus. The margins of the wound were charred heart, lungs, intestine were completely out.
(ii). Extensive lacerated wound with black margins, on the face. The face completely disfigured.
Caused by : - Explosive substance.
Abdomen : - lacerated burst.
Thorex : - Ribs were fractured and burst.
Lungs : lacerated and torn Stomach : - containing partially digested rice and curd. Intestine : - full of gases and fecal matter.
-8- Cr. Appeal (DB) No.994 of 2009
Liver : - completely ruptured.
Intestine perforated of multiple sites.
Kidneys were pale.
Urinary bladder was empty.
Enternal genitalia : NAD
The witness has stated that cause of death due to severe haemorrhage and shock resulting from the above mentioned injuries caused by explosive substance.
On Lalu Yadav, he found the following injuries:-
External Injuries (Ante-mortem)
(i) Badly lacerated wound 1 ft. X 1 ½ ft. involving the right half of back with blackening of margins. All the structure hard and soft shattered and torn.
(ii) Incised wound cutting all the tables of right parieto temporal and occipital bones. Brain and meninges all thrown out.
On Dissection Brain : - Meninges torn and lacerated.
Heart : - Both sides empty.
Stomach: - containing partially digested rice.
He has stated that injury No. (i) was caused by explosive substance and injury No. (ii) was caused by heavy sharp cutting weapon. Cause of death was from severe haemorrhage and shock resulting from the above mentioned injuries.
On Rajesh Yadav, he found the following injuries:-
External Injuries (Ante-mortem)
(i) An incised wound on the left half of scalp cutting all tables of parieto temporal and occipital bones. Brain matter leaking out, caused by a heavy sharp cutting weapon.
(ii) Gunshot wound on the right half back with bullet insitu caused by fire arm.
(iii) A lacerated wound 1"x1/2" with charred margins on the left lateral chest wall.
On Dessection Left hemithorax full of blood. A bullet removed from the posterior wall. Left lung was lacerated, right lung normal. Heart : Both sides empty.
Stomach : - Containing partially digested rice and curd. Intestine : - Full of gases and fecal matter.
Liver : - Spleen and kidneys were pale.
Urinary bladder empty.
Internal genitalia NAD.
He has stated that injuries Nos. (ii) and (iii) were caused by firearm. Cause of death was due to severe haemorrahge and shock resulting from the above mentioned injuries. Two bullets were removed from the dead body and were handed over to the police .
He has identified the post mortem reports to be in his pen and signature, which were marked Ext. 2 series.
-9- Cr. Appeal (DB) No.994 of 2009
13. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein, the accused persons have denied the evidence against them. Though the defence had not adduced any oral evidence, but they brought on record the documents, which were marked Exts.-A to F series. Ext.-A is the certified copy of the Judgment dated 30.4.2003, passed in the murder case of Pitamber Yadav and Mahesh Yadav, in which, the deceased persons in this case, viz., Chutari Matha, Rajesh Yadav, Lalu Yadav and several other persons were convicted and sentenced. Ext.-B is also a certified copy of a Judgment in a criminal case, in which, Chutari Matha, Keshav Yadav and Kishan Yadav convicted and sentenced. Ext.-C is the FIR relating to murder of Pitamber Yadav and Mahesh Yadav, and other exhibits are the certified copies of the sessions register, showing that the deceased were accused in other cases as well.
14. On the basis of these evidence on record, the Trial Court below has convicted and sentenced all the seven accused persons facing the trial for the offence under Sections 302 / 34 of the Indian Penal Code, but has acquitted them of the charge under Section 27 of the Arms Act.
15. Learned senior counsel arguing for the appellants submitted that the impugned Judgment of conviction and Order sentence cannot be sustained in the eyes of law, as the prosecution has failed to bring home charge against the accused persons beyond all reasonable doubts. It is submitted by learned senior counsel that PWs.-1, 2, 3, 4 and 11 have not stated anything about the occurrence. The occurrence is supported only by the highly interested witnesses, claiming to be the eyewitnesses to the occurrence, though they are not the eyewitnesses to the occurrence. PW-6 Ram Prasad Yadav is the grandson of the deceased Chutari Matha, PW-7 Manju Devi and PW-9 Sanju Devi are the daughters-in-law of the deceased, whereas PW-8 Sitaram Yadav and PW-10 Jitendra Yadav are brothers of PW-9 Sanju Devi, and they have only supported the prosecution case being highly interested witnesses, falsely implicating the accused persons due to previous enmity, which is admitted in the case. Learned senior counsel has drawn our attention towards the cross-examination of PW-6 Ram Prasad Yadav, wherein, he had denied the suggestion to have given the statement before the police that at about 12 PM, he was in his house on the date of occurrence. Similarly, PW-8 Sitaram Yadav and PW-10 Jitendra Yadav have also denied the suggestion to have given the statement before the police that they were
- 10 - Cr. Appeal (DB) No.994 of 2009 only the hearsay witness to the occurrence and when they reached near the place of occurrence, they were informed that unknown persons had committed the murder. It is submitted by the learned counsel that the I.O. has not been examined in the case, which has vitally prejudiced the defence in not taking the contradictions of the evidence of these witnesses. It is submitted that these witnesses have supported the prosecution case as eyewitnesses to the occurrence, but they were actually only the hearsay witnesses and they were not informed as to who had committed the murder. It is further submitted by learned counsel that even PW-7 Manju Devi and PW-9 Sanju Devi are not the eyewitness to the occurrence, as the rickshaw puller, who was taking them to Godda from their village, has been examined by the prosecution as PW-5 Ranjan Manjhi, and this witness has stated that at about 12:00 PM, they had reached near Dumaria Chowk, where they heard the remour about the murder of Chutari Matha, whereupon, the daughters-in-law asked him to drive the rickshaw speedily and he brought them to the place of occurrence at about 1:00 PM, where they saw the dead body. No one present there informed them as to who had committed the murder and thereafter they went to jail on the same rickshaw to meet Kishan Yadav and Keshav Yadav, then they came to the Police Station and lodged the FIR. Learned senior counsel has submitted that only after this evidence was given by PW-5 Ranjan Manjhi, PW-7 Manju Devi has stated that there was no rickshaw plying in her village and she has also denied the suggestion to have given the statement before the police that on the day of occurrence, they were going on the rickshaw of Ranjan Manjhi, but she has admitted that on the date of occurrence her brothers-in-law Kishan and Keshav were in jail. Similarly, PW-9 Sanju Devi has also denied the suggestion that she had given the statement before the police that on the date of occurrence, they were going on the rickshaw of Ranjan Manjhi. Learned counsel has submitted that in the case diary, the statements of both these witnesses would show that they were going on the rickshaw of Ranjan Manjhi, but they have concealed this fact before Court and due to non-examination of the I.O., this fact could not be taken from him. Learned counsel also pointed out that even though the fardbeyan is shown to be recorded at the place of occurrence, i.e., near Kauri-bahiyar turning, but all the witnesses, including the informant has admitted that their statements were taken at the Police Station and all of them put their thumb impression
- 11 - Cr. Appeal (DB) No.994 of 2009 or signatures at the Police Station, and this fact is also corroborated by the evidence of PW-5 Ranjan Manjhi, who has stated that from jail, he had brought the informant to the Police Station. Learned senior counsel has also pointed out that though in the FIR, it is clearly stated that the cause of occurrence was the earlier murder of Pitamber Yadav and Mahesh Yadav, but this fact is concealed by PW-7 Manju Devi and other eyewitnesses. This completely belies even the motive of occurrence, as stated by the informant in the fardbeyan. Learned counsel accordingly, submitted that this is a case, in which, the defence has been vitally prejudiced due to non-examination of the I.O., and had the I.O. been examined, it could have been proved that none of the witnesses were the eyewitness to the occurrence. As such non-examination of the I.O. is fatal to the prosecution. Learned senior counsel accordingly, submitted that the impugned conviction and sentence of the appellants cannot be sustained in the eyes of law.
16. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that all the eyewitness have fully supported the prosecution case. The evidences of the eyewitnesses are also fully corroborated by the medical evidence of PW-12 Dr. Satendra Mishra, who had found the bomb injuries and the injuries caused by firearm and sharp cutting weapon upon the dead bodies of the deceased. Learned counsel accordingly, submitted that the prosecution has been able to bring home charge against all the appellants beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below.
17. Having heard learned counsels for both the sides and upon going through the record, we find that the evidence of PW-5 Ranjan Manjhi is very vital evidence in the case. This witness has been examined by the prosecution itself, and he demolishes the entire prosecution case. He has not been declared hostile by the prosecution and there was no occasion for the same, in as much as, we have also looked in the case diary, which shows that same statement was given by him before the police also. According to the evidence of this witness, both daughters-in-law of the deceased, who have claimed to be the eyewitnesses to the occurrence, cannot be eyewitnesses, because according to the prosecution case, the occurrence had taken place at about 10 to 10:30 AM, whereas, according to this witness both these daughters-in-law were on his rickshaw and they had reached Dumaria
- 12 - Cr. Appeal (DB) No.994 of 2009 Chawk at about 12:00 PM, where they heard the rumour about the occurrence and thereafter they reached the place of occurrence at about 1:00 PM. They inquired from the people nearby, but none present there could inform them as to who had committed the murder of the deceased persons. Thereafter, they came to the jail, where two sons of the deceased Chutari Matha were still in jail in connection with murder of Pitamber Yadav and Mahesh Yadav. They met them and thereafter they came to the Police Station, where they gave their statements. The false implication of the accused persons at the behest of Kishun Yadav and Keshav Yadav, who were in custody in connection with the earlier two murders, cannot be ruled out. All the eyewitnesses, including PW-7 Manju Devi have stated that their statements were taken at the Police Station, though the fardbeyan is shown to be recorded at the place of occurrence. Though PW-7 Manju Devi, the informant, has stated in her fardbeyan that the occurrence had taken place as a retaliation to the murder of Pitamber Yadav and Mahesh Yadav, in which connection, all the deceased were in jail and they were murdered few days after they came out of the jail, but in her evidence, she has completely changed her version and stated that she had no knowledge about these facts. The defence has brought on record the documentary evidence to show that the deceased were involved in the murder of Pitamber Yadav and Mahesh Yadav and they were convicted and sentenced for their murder. It is admitted by PW-7 Manju Devi herself, that her brothers-in-law Keshav Yadav and Kishan Yadav were in jail even on the date of occurrence. Thus the evidence of PW-5 Ranjan Manjhi that from the place of occurrence, both the ladies went to meet these two persons in jail and thereafter, they came to Police Station and lodged the case, appears to be cogent version given by him and this completely belies the evidence of PW-7 Manju Devi and PW-9 Sanju Devi, who have claimed to be the eyewitnesses to the occurrence. Similarly PW-6 Ram Prasad Yadav, PW-8 Sitaram Yadav and PW-10 Jitendra Yadav, though, have claimed to be the eyewitnesses to the occurrence, but PW-6 Ram Prasad Yadav has denied the suggestion to have given the statement before the police that he was at his house about 12:00 PM on the date of occurrence, and the other two witnesses have also denied the suggestion who have given their statements before the police as hearsay witnesses and not as eyewitnesses, and when they came to the place
- 13 - Cr. Appeal (DB) No.994 of 2009 of occurrence, they were informed that unknown persons had committed the murder. The fact remains that the I.O. has not been examined in this case and we have looked into the case diary, which shows that all these three witnesses had given the statements before the police only as hearsay witnesses, stating that the offence had been committed by unknown. We are of the considered view that the evidence of all these so called eye witnesses cannot be relied upon and it cannot form the basis of the conviction of the accused appellants. Indeed there is long drawn enmity between both the parties and false implication of the accused persons at the behest of two sons of the deceased Chutari Matha, who were in jail, cannot be ruled out. We are of the considered view that the prosecution has failed to bring home the charge against all the accused persons beyond all reasonable doubts, and even though the witnesses have supported the prosecution case, it is a fit case, in which, the accused appellants ought to have been given the benefits of doubt.
18. For the foregoing reasons, the impugned Judgment of conviction dated 9th September 2009 and Order of sentence dated 15th September 2009, passed by the learned 1st Additional Sessions Judge, Godda, in S.T. No. 80 of 2004 / 393 of 2009, are hereby, set-aside. Consequently, all the appellants, namely, Anil Yadav, Umesh Yadav, Raju Yadav, Sankar Yadav, Dhananjay Yadav, Mannu Yadav and Shatru Yadav, are hereby, given the benefits of doubt and they are acquitted of the charge. All the appellants are in custody, undergoing the sentence. Let them be released and set at liberty forthwith, if their detention is not required in any other case.
19. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) A.K. Choudhary, J.:-
(A.K. Choudhary, J.) Jharkhand High Court, Ranchi.
Dated, 31st of January, 2018.
R. Kumar/AFR