Jharkhand High Court
Raghubir Prasad & Ors. vs State Of Jharkhand on 4 October, 2012
Equivalent citations: 2013 (1) AJR 323
Author: D.N. Patel
Bench: D.N. Patel, Prashant Kumar
1
Criminal Appeal (D.B.) No.722 of 2005
(Against the judgment of conviction dated 17.06.2005 and order
of sentence dated 22.06.2005 passed by the Additional Sessions
Judge (F.T.C.), Latehar in Sessions Case No. 171 of 1989 and
171A of 1989)
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1.Raghubir Prasad @ Raghu Beer Prasad Singh
2.Bhokh Nath Singh
3.Umakant Singh
4.Ambika Singh
5.Rambrikath Singh @ Ram Bricha Singh
6.Nand Bihari Giri
7.Rajendra Singh
8.Gangadhar Singh
9.Preman Singh
10.Ramprasad Singh
11.Ram Pratap Singh
12.Sheo Mangal Singh
13.Bineshwar Singh @ Dinanath Singh
14.Ram Sundar Singh
15.Kuleshwar Singh
16.Shishupal Singh
17.Mundrika Singh
18.Gora Singh
19.Suren Singh @ Surendra Singh
20.Bhuneshwar Singh
21.Surajdeo Singh
22.Jagnarayan Singh
23.Jayram Singh
24.Chandrika Singh
25.Anant Singh
26.Sheo Kumar Singh
27.Dashrath Singh
28.Sheo Shankar Yadav
29.Raj Mohan Singh
30.Nagardyal Singh
31.Kunjlal Singh ... ... ... ... ... Appellants
Versus
The State of Jharkhand ... ... ... ... Respondent
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For the Appellants: Mr. Mahesh Tewari
Mr. A.K. kashyap, Sr. Advocate
Mr. B.M. Tripathy, Sr. Advocate
For the Respondents: Mr. V.S. Sahay, APP
CORAM
HON'BLE MR. JUSTICE D.N. PATEL
HON'BLE MR. JUSTICE PRASHANT KUMAR
Per Prashant Kumar,J In the instant appeal, the appellants,
named above, had challenged the judgment of conviction and
2
order of sentence dated 17.6.2005 and 22.6.2005 respectively
passed by learned Additional Sessions Judge, FTC Latehar in
Sessions Trial No. 171 of 1989 whereby and whereunder all the
appellants were convicted under section 436/34, 341/34, 323/34
and 302/34 of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for 10 years and pay fine of Rs. 5,000/-
each under section 436/34 of the Indian Penal Code. The
appellants further sentenced to undergo simple imprisonment for
one year under section 341/34 of the IPC, they are further
sentenced to undergo rigorous imprisonment for one year under
section 323/34 of the IPC and they have also been sentenced to
undergo imprisonment for life and pay fine of Rs. 5,000/- each
under section 302/34 of the IPC.
2. At the out set , it is relevant to mention that initially this
appeal was jointly filed by altogether 31 convicts but during the
pendency of this appeal, the appellant no. 2, namely, Bhokh Nath
Singh, appellant no. 4 namely, Ambika Singh , appellant no. 5
namely Rambrikath Singh @ Ram Bricha Singh, appellant no. 13
namely, Bineshwar Singh @ Dinanath Singh , appellant no. 16,
namely, Shishupal Singh , appellant no. 20 namely, Bhuneshwar
Singh and appellant no. 22 namely, Jagnarayan Singh had died,
thus the appeals so for the aforesaid seven appellants are
concerned, stands abated vide order dated 20.4.2009 and
24.9.2012., passed by this Court
3. The case of prosecution in brief as per the fardbeyan of Kailash Saw P.W. 15 is that on 23.5.1988 in the morning at about 6 a.m., Satyendra Saw ( P.W. 13) was going to forest for bringing wood. In the way, he has been intercepted at Paliyar Tola by Paliyar people. It is further alleged that Paliyar people assaulted him with slaps and confined him in a joint house. Thereafter about 100 Paliyar people armed with various weapon assembled near the house of Harihar Saw and they collected straw and K. Oil and thereafter put fire on straw, kept in the south of the house of Harihar Saw. After putting fire, Paliyar people raised hulla and on the said hulla about 20 to 25 persons of informant's party assembled. It is stated that because 3 informant's party had been frightened by Paliyar people, therefore Arjun Saw, Bijul Saw had gone to the place of arsoning armed with their licensee gun. It is stated that Surjdeo Singh caught hold the gun of Arjun Saw and then Raghubir Prasad exhorted. Thereafter Kunj Lal Singh looted the gun of Bijul Saw. It is further stated that thereafter due to fear, Bijul Saw entered in the house of Shiv Prasad Saw and rest persons had started fleeing, but Paliyar people chased and assaulted them with Farsa, Garasa, Ballam and Lathi. It is stated that informant took shelter in the house of Mahavir Thakur. It is further stated that when police arrived, informant came out of the house of Mahavir Thakur and then came to know that Arjun Saw, Bijul Saw, Bhola Saw, Sanjay Saw, Shiv Prasad Saw, Mohar Saw and Ram Bilas Saw have been killed. He further stated that Satyanarayan Singh had been killed from the side of Paliyar people. It is further stated that informant was not knowing as to how Satyanarayan Singh died. He further alleged that during the occurrence, Doman Saw, Harihar Saw and Yasoda Devi, wife of Mohar Saw, had received injuries. According to the informant, entire occurrence took place because previous to the date of occurrence, some quarrel took place in between Uday Giri and Sakendra Saw. Informant had named altogether 40 persons including the appellants from among the Paliyar people, who are involved in the commission of present crime.
4. On the basis of aforesaid information, Latehar P. S. Case No. 57 of 1988 dated 23.5.1988 under sections 147, 148, 149, 541, 302, 436 and 379 of the IPC instituted and police took up investigation. It appears that during the investigation, police prepared inquest report of the dead bodies and sent the dead bodies for postmortem examination. It also appears that Investigating Officer recorded the evidence of different witnesses and after completing the investigation, submitted charge sheet against altogether 41 persons. It then appears that 6th Additional Sessions Judge framed charges against 41 accused persons under section 436/34, 341/34, 323/34 and 302/34 of the IPC against all the accused persons. The learned court below also 4 framed charge under section 379 against Kunjlal Singh and Surjdeo Singh. The aforesaid charges were read over and explained to the accused persons to which they pleaded not guilty.
5. It is relevant to mention here that during the pendency of the trial co-accused Jag Sharan Singh, Garju Singh, Chandra Nath Singh, Nankhu Singh, Meghraj Singh @ Mahang Singh and Yugal Singh had died and accordingly, proceeding against them have been dropped. It is also not out of place to mention here that on the date of judgment the cases of co-accused Ashok Singh, Srikant Singh, Chandra Deo Singh and Bijendra Kumar Singh have been split up and sent to Juvenile Court as they have been found juvenile on the date of occurrence.
6. It appears that in the court below, prosecution had examined altogether 19 witnesses, P.W. 1 Md. Mushtaqmi, P.W. 2 Doman Sah, P.W. 3 Brajesh Choudhary, P.W. 4 Mohan Prasad, P.W. 5 Thakur Chand Pd. Sah, P.W. 6 Gopi Sah, P.W. 7 Deoki Sah, P.W. 8 Kundan Kumar, P.W. 9 Binod Pd., P.W. 10 Satish Kumar, P.W. 11 Brind Kumar, P.W. 12 Mukesh Kumar, P.W. 13 Satyandra Kumar, P.W. 14 Kanhai Pd., P.W. 15 Kailash Prasad, P.W. 16 Janardan Mishra, P.W. 17 Manik Chandra, P.W. 18 Siddhnath and P.W. 19 Ajay Kumar. Prosecution had also brought on record, the inquest reports, post mortem reports of all the deceased, FIR, Fardbeyan, site map where the different dead bodies were found.
7. After close of the case of prosecution, the statement of accused recorded under section 313 of the Cr. P. C. in which their defence is of total denial. They also took defence that they have been falsely implicated by prosecution witnesses with a view to save their skin from the cross case i.e. Sessions Trial No. 172 of 1989. It appears that the defence had brought on record two documents i.e. entire order sheet of G.R. No. 258 of 1988 and certified copy of FIR of Latehar P. S. Case No. 58 of 1988 dated 23.5.1988.
8. The court below after considering the evidence available on record convicted and sentenced appellants, vide its judgment of 5 conviction and order of sentence dated 17.6.2005 and 22.6.2005 respectively as stated herein above. Against the said judgment of conviction and order of sentence, present appeal filed.
9. The learned counsels appearing for the appellants submit that in the instant case, all the witnesses of fact are either related to each other or with the deceased. They further submit that almost all witnesses of fact are accused in the cross case, thus, they are highly interested in the case of prosecution. Therefore, law demands that their evidence be scrutinized cautiously and carefully. Learned counsels further submit that on careful scrutiny of the evidence of P. Ws. 2, 3, 4, 5, 6, 7, 8, 9, 10, 13 and 14, it is clear that they are not reliable witnesses. They submit that there is material contradiction, exaggeration and development in the evidence of aforesaid witnesses. It is submitted that the defence drawn their attention to their previous statement made before the police to illicit contradiction but the same has not been proved because of non examination of I.O. It is submitted that most of the witnesses i.e. P. Ws. 3,4,5,6,7,8,9 and 10 have been examined by the police under section 161 of the Cr. P. C. after about one month of the occurrence and there is absolutely no explanation for such delay. Thus, Investigating Agency had given sufficient time to the prosecution witnesses for concocting a false story with a view to falsely implicate the appellants. It is further submitted that in the instant case, the I.O. had found dead body at different places and most of the witnesses had claimed that they saw occurrence while coming form Sah Tola to Paliyar Tola. Thus, due to non examination of I.O., the topography of the place of occurrence had not been brought on record from which it can be ascertained as to whether the witnesses are in a position to watch the occurrence. It is submitted that some of the witnesses claimed that they saw the occurrence from the window of their house situated at Sah Tola. It is submitted that exact distance from Sah Tola to place of occurrence i.e. Paliyar Tola has not come due to non examination of I.O. However, one of the witness stated that the distance is about 1/2 k.m.. Accordingly, learned counsels submit that it is 6 not possible to watch an incident from a distance of 1/2 k.m, thus, prosecution witnesses are unreliable. It is further submitted that non examination of I.O. in this case is fatal to the case of prosecution. It is submitted that due to non examination of doctor, the defence had been prejudiced, because they have not been able to ask question from the doctor as to whether the injuries sustained by deceased are possible by spear or not. It is further submitted that there is no direct evidence to show that appellants put fire in the house of Harihar Sah. It is submitted that so far offence of arsoning is concerned, Harihar Sah was the best witness in whose house, it is alleged that the appellants put fire, but said Harihar Sah has not been examined and no explanation given regarding his non examination. It is submitted that due to non examination of I.O. also aforesaid fact has not been proved; It is further submitted that all the appellants convicted under section 323/34 of the IPC for assaulting Doman Sah, Harihar Sah, Yasoda Devi. It is submitted that Harihar Sah and Yasoda Devi had not been examined and no explanation given for their non examination. It is further submitted that the injury reports of Doman Sah, Harihar Sah and Yasoda Devi had not been brought on record, thus, the offence under section 323/34 of the IPC is not proved. It is then submitted that the submission of Sakendra Sah (P.W. 13) is also not worth acceptable. There are contradictions in the evidence of prosecution witnesses regarding him. P.W. 2 and 4 had stated that Sakendra Sah has been confined in a room, whereas Sakendra Sah stated that he has been restrained, thus, offence under section 341/34 of the IPC has also not been proved. Accordingly, it is submitted that the prosecution failed to prove the charges leveled against the appellants.
10. On the other hand, learned Additional P. P. submits that in the instant case seven persons have been killed. The appellants put fire in the dwelling house of Harihar Saw. He further submits that in course of occurrence P.W. 2 Doman Sah, Harihar Saw and Yasoda Devi wife of Mohan Saw have been assaulted and they received injuries. It is submitted that aforesaid fact has been 7 proved by altogether 10 eye witnesses. The eye witnesses have given vivid ocular account of the occurrence and they have stated only those facts which they have seen from their own eyes. P.W. 3 has stated that he saw the assault of deceased Bijul Sah and Sanjay Sah. P.W. 4 had given evidence regarding the murder of Shiv Prasad Sah, P.W. 5 has stated about the murder of Mohar Sah, P.W. 6 stated about the murder of Arjun Prasad, Bijul Sah, Sanjay Kumar, Bhola Sah, Mohar Sah and Ram Bilash Sah, P.W. 7 has stated about the murder of Arjun Sah. P.W. 8 has stated about the murder of Arjun Sah and Bhola Sah, P.W. 9 has stated about the murder of Bhola Sah. P.W. 10 has stated about the murder of Arjun Sah. He submits that the aforesaid circumstance shows that prosecution witnesses are trustworthy and reliable because if they have any intention to falsely implicate the appellants, then they would have narrated about the entire occurrence, but they have not done so. It is submitted that all the witnesses have stated that in the house of Harihar Sah, appellants put fire. Thus, offence under section 436/34 of the IPC is proved by the prosecution beyond shadow of all reasonable doubt. He further submits that offence under section 323/34 IPC is also proved in the instant case and 341/34 IPC had also been proved by the prosecution. Accordingly, he submits that learned court below rightly convicted and sentenced the appellants, thus no interference required by this Court.
11. In the instant case, prosecution had brought on record post mortem reports and inquest reports of deceased to prove that they died a homicidal death. The defence has not challenged the homicidal death of the deceased persons. Under the said circumstances, only question require to be decided in this appeal is whether the appellants are involved in the commission of present crime ?
12. Having heard the submissions, we have gone through the records of the case. It is admitted position that P.W. 2, P.W. 6, P.W. 7 are own brother, deceased Sanjay Sah was the son of P.W.
7. It further appears that witnesses P.W. 9 Binod Prasad is cousin of P.W. 2, 6 and 7. P.W. 5 is brother of deceased Bijul Sah and 8 Arjun Sah. It further appears that P.W. 2 to 10, who claims themselves to be the eye witness of the occurrence, are accused in the cross case i.e. S.T. No. 172 of 1989.
13. It is well settled that only because witnesses are related to each other and inimical to accused persons, their evidence cannot be thrown over board rather law demands that their evidence be scrutinized carefully and if on careful scrutiny their evidence found to be reliable and trustworthy, then it is open for the court to base conviction on their evidence.
14. Keeping in view aforesaid law, we are proceeding to consider the evidence adduced by the prosecution. P.W. 1 is an advocate clerk, who appears to be a formal witness. He proved the inquest report. Thus, his evidence is not very much relevant, because he did not take the name of deceased whose inquest he has proved.
15. P.W. 2 Doman Sah has stated that on 23.5.1988 in the morning he has been told by Mohan Sah (P.W. 4) that Paliyar people confined Satyendra Prasad in Mahabir Sthan situated at Paliyar Tola. On said information, he went there and saw that Bihari Giri, Sohar Singh, Mohar Singh, Madha Singh, Nagar Dayal Singh, Bineshwar Singh, Chandrika Singh, Anant Singh, Kunjlal Singh, Mohan Singh were standing at that place and they have confined Sakendra Prasad at Mahabir Sthan. He further deposed that when he requested them to release Sakendra Prasad they said, if he will send Brajesh Prasad (P.W. 3) then, Sakendra Prasad will be released. He further stated that thereafter he return from that place and stayed near the house of Harihar Sah. He further deposed that thereafter aforesaid persons came behind him and then Madha Singh, Kunjlal Singh, Nagar Dayal Singh, Bineshwar Singh and Mohan Singh sprinkled K. oil and put fire on the southern side of the house of Harihar Sah. He then states that thereafter Nagar Dayal Singh, Bindeshwar Singh and Langra son of Chandra Nath Singh assaulted him due to which he received injury on his hand. He then states that thereafter he returned to his house. He also states that he has been treated in Latehar hospital. During the cross examination, his attention was drawn to his earlier statement made before the police and it was 9 suggested that he has not stated before the police what he stated in his examination in chief. It is worth mentioning that I.O. has not been examined in this case and no explanation given regarding his non examination. However, it appears that case diary has been exhibited in this case as Ext.-9. From perusal of case diary, we find that at paragraph no. 25 I.O. has recorded the statement of P.W. 2. From perusal of the same, we find that he has not taken the name of Sohar Singh, Madha Singh, Nagar Dayal Singh, Bineshwar Singh, Chandrika Singh and Anant Singh among the persons who had confined Sakendra Prasad at Mahabir Sthan. Thus, it appears that he has taken the name of aforesaid accused persons for the first time and thus, it appears that he makes development in the case of prosecution for the first time. Likewise, he has not stated before the police that Madha Singh, Kunjlal Singh, Nagar Dayal Singh, Bineshwar Singh, Mohan Singh came near the house of Harihar Sah and after sprinkling K. oil, put fire on the southern side of the house of Harihar Sah. He has also not stated before the police that Nagar Dayal Singh, Bineshwar Singh and Langra son of Chandra Nath Singh has assaulted him. It is relevant to mention here that P.W. 4 stated that Doman Sah disclosed that he hide himself in the house of Mahabir Thakur. Thus, keeping in view that P.W. 2 is a highly interested witness being relative of one of the deceased Sanjay Sah and accused of cross case, the aforesaid discrepancy which are significant in nature, makes him wholly untrustworthy and unreliable.
16. P.W. 3 Brajesh Choudhary stated that on 23.5.1988 in the morning , after hearing hulla, he went to the house of Harihar Sah and saw fire in his house. He further deposed that in the lane, which situates northern to the house of Harihar Sah, he saw that Jagnarayan Singh, Surajdeo Singh , Kunjlal Singh, Rajmohan Singh, Shiv Kumar Singh were assaulting Bijul Sah and Sanjay Sah with Garasa. Thereafter, he fled away from that place. During the cross examination at pagraph no. 12, he took the name of Nand Bihari Giri and Suraj Nath Singh among the assailant and left the name of Shiv Kumar Singh. It has come in 10 the evidence of P.W. 2 and P.W. 13 that Paliyar people restrained Sakendra Sah and they were demanding from Sah people to produce Brajesh Sah ( P.W. 3) because on the previous day, he assaulted one Uday Giri. Thus, the present witness Brajes Sah is the person who was wanted by the Paliyar people. P.W. 3 stated that he went at the house of Harihar Sah from Devi Mandap Road. Admittedly Sah Tola situates on the south of Paliyar Tola. Devi Mandap Road situates on the south side of the house of Harihar Sah. P. W. 3 in his deposition at paragraph 8 had stated that Paliyar people were standing on the south of the house of Harihar Sah, armed with lethal weapon. It is also admitted position that murder of Bijul Sah and Sanjay Sah took place in a lane, which situates to the north of the house of Harihar Sah. Under the said circumstances, it is not possible for P.W. 3 to go on the northern side of the house of Harihar Sah after crossing the paliyar people who were standing in between armed with lethal weapon. Because P.W. 3 is the most wanted person for whom present occurrence took place. Thus, if he would have been seen by the Paliyar people then they would not spare him. The aforesaid circumstance narrated herein above coupled with facts that this witness was examined by the police on 29.6.1988 i.e. after one month and six days of the occurrence and that too without any explanation, makes him highly unreliable and untrustworthy.
17. P.W. 4 Mohan Prasad stated that in the morning while he was going to forest and when he reached at Devi Sthan in Paliyar Total, he saw that Surajdeo Singh, Nand Bihari Giri, Anant Singh, Nagar Dayal Singh, Jagnarayan Singh were confining Sakendra Singh. He stated that when he asked them as to why Sakendra was confined, Bihari Giri told him that Brajesh Choudhary has assaulted Uday Giri and if Brajesh Choudahry will be brought and handed over to them, then Sakendra will be released. He further deposed that thereafter he returned and disclosed this fact to Doman Sah ( P.W. 2), who went to rescue Sakendra Sah. He further deposed that after sometime he heard hulla and then he saw fire in the house of Shiv Prasad Sah and Harihar Sah 11 from the window of Doman Sah. He further deposed that he saw that Anant Singh, Jagnarayan Singh, Nagar Dayal Singh and Bhuneshwar Singh were assaulting Shiv Prasad Sah with Garasa, thereafter he returned. His attention was drawn to his previous statement made before the police to the extent that he has not stated before the police that he saw fire in the house of Shiv Prasad Sah and Harihar Sah. This witness admitted at paragraph no. 10 that he saw entire occurrence from the window situated on the boundary wall of Domah Sah. He also admits that the house of Harihar Sah situates at a distance of 200 yard from the house of Doman Sah. In our view, it is not humanely possible that a person can give a vivid account of an occurrence after seeing it from a distance of 200 yard. It is not out of place to mention that this witness admitted that near the place of occurrence 30 to 40 persons were standing, thus, his claim that he saw from a distance of 200 yard that Anant Singh, Jagnarayan Singh, Nagar Dayal Singh and Bhuneshwar Singh were assaulting Shiv Prasad, do not inspire confidence. Moreover, it appears that this witness was examined by police on 29.6.1988 and no explanation given regarding the delay in recording of the aforesaid statement. It is also clear that this witness is an accused of cross case i.e. S.T. No. 172 of 1989 and he is confined in jail along with other prosecution witnesses. Thus, there is every possibility that he might have cooked up a false story after due deliberation with other prosecution witnesses. In that view of the matter, we find that P.W. 4 is not a trustworthy witness.
18. P.W. 5 Thakur Chand Prasad Sah has stated that he saw smoke and then went to his old house, where he has been told by his father that Bijul Sah and Arjun Sah have been killed. He then states that thereafter he saw from the window of his old house that Anant Singh and Nankhu Singh were assaulting Mohar Sah. This witness is also an accused of cross case. At paragraph no. 10, he states that he could see only up to a distance of 100 yard. He then states that distance of the home of Harihar Sah from his old house is about 1/ 2 k.m.. At paragraph no. 11, he states that he saw the occurrence from his window. He further stated that 12 from the window persons going on the road could not be seen. He then states that the dead body of Mohar Sah was lying on the road. Under the said circumstance, this witness was not in a position to see the occurrence and that too from a distance of 1/ 2 k.m. This witness was also examined by the police on 29.6.1988 while he was in Jail. There is no explanation as to why his statement recorded after more than one month six days from the date of occurrence. This witness also appears to have cooked up a false story in the jail with deliberations with other prosecution witnesses. In that view of the matter, we find that he is also not a trustworthy witness.
19. P.W. 6 Gopi Sah stated that on the date of occurrence after hearing Hulla of fire in the house of Harihar Sah, he went to the field and saw that Anant Singh, Naankhu Singh, Shiv Kumar Singh, Jai Narayan Singh, Nagar Dayal Singh were assaulting Shiv Prasad Sah. He further deposed that 40 to 50 persons armed with weapon wondering near the house of Harihar Sah, among them he identified Bihari Giri, Shiv Shankar Mahto, Raghubir Prasad, Chandrika Singh, Jai Ram Singh, Dasrath Singh, Ashok Singh, Surn Singh, Mudrika Singh, Gora Singh, Bhokhnath Singh, Suraj Deo Singh, Bhuneshwar Singh, Shashipal Singh, Fuleshwar Singh , Shyam Sundar Singh, Bhuneshwar Singh, Garju Singh, Ram Prasad Singh, Ram Pratap Singh, Shiv Mangal Singh, Deo Sharan Singh, Mohan Singh, Chandra Deo Singh, Madha Singh, Kunjlal Singh, Chandra Nath Singh, Gangadhar Singh, Rajndra Singh, Rambrickash Singh, Ambika Singh, Sri Kant Singh. He further deposed that they killed Arjun Prasad, Bijul Sah, Sanjay Kumar, Bhola Sah, Mohar Sah and Ram Bilash Sah. During the cross examination, he admits that on 23.5.1988 at about 9 a.m. police reached to his village but that day he did not appear before the police. He further admits that he was examined by the police after 20 to 25 days of the occurrence. His attention was drawn to his previous statement made before the police and it was suggested to him that he has not taken the name of accused persons named in the examination -in-chief before the police, nor he stated that accused persons killed Arjun 13 Prasad, Bijul Sah, Sanjay Kumar, Bhola Sah, Mohar Sah and Ram Bilash Sah. From perusal of case diary paragraph no. 133, we find that he has only taken the name of Anant Singh, Nankhu Singh, Shiv Kumar Singh, Jagnarayan Singh, Nagar Dayal Singh and had said that they were assaulting Shiv Prasad Sah. He has not stated anything regarding the death of Arjun, Bijul, Sanjay Kumar, Bhola Sah, Mohar Sah and Ram Bilash. His attention was drawn to his previous statement to the extent that he had stated before the police that he saw entire occurrence from the window of his house, which was denied by them, but from perusal of his statement in the case diary, we find that he stated so before the police. This witness admitted that his house situates in Sah Tola. It has come in the evidence of P.W. 5 that the distance of Sah Tola from house of Harihar Sah is about 1/ 2 k.m. Under the said circumstance, claim of this witness that he saw the occurrence appears to be doubtful. It appears that after 20 to 25 days of the occurrence, he with the deliberation of other witnesses cooked up a story. Thus, in view of development made by this witness during the examination in chief, we find that he is not a trustworthy witness
20. P.W. 7 Deoki Sah stated that after hearing Hulla, he went near the house of Harihar Sah and saw that Bihari Giri,Shiv Shankar Yadav, Dashrath Singh, Nankhu Singh, Surajdeo, Bhokhnath Singh, Bhuneshwar Singh, Satnarayan Singh, Chandrika Singh, Mudrika Singh, Anant Singh, Jagnarayan Singh, Jairam Singh, Gora Singh, Shishupal Singh, Kuleshwar Singh, Sundar Singh, Bineshwar Singh, Garju Singh, Ram Prasad Singh, Ram Pratap Singh, Pareman Singh, Madha Singh, Kunj Lal Singh, Chandra Nath Singh, Nagar Dayal Singh, Uma Kant Singh, Ganglal Singh, Gangeshwar Singh, Ram Brikash Singh, Chandra Deo Singh armed with tangi and Garasa were putting fire in the house of Harihar Sah, he further deposed that Chandrika Singh, Shiv Shankar Yadav, Mohan, Surajdeo Singh and Junjlal Singh were assaulting Arjun Sah due to that Arjun Sah died on the spot. He further stated that thereafter, he fled away. During the cross examination, his attention was drawn to his previous 14 statement made before the police to the effect that he had not taken the name of aforesaid accused persons who put fire in the house of Harihar Sah. His attention was also drawn to his previous statement and it was suggested to him that he had not taken the name of Suraj Deo Singh, Kunjlal Singh and Chandrika Singh before the police among the assailants of Arjun Sah. This witness admitted that his statement was recorded by the police after 15 days of the occurrence while he was in jail custody and there is no explanation. Thus from the perusal of evidence of this witness, we find that he made material development in the prosecution story. It further appears that he cooked up a false story in jail after deliberating with other witnesses because he and other witnesses are accused of cross case bearing S.T. No. 172 of 1989 and all are in jail custody. In that view of the matter, we find that he is not a trustworthy witness.
21. P.W. 8 Kundan Kumar has stated that after hearing hulla, he went to the house of Harihar Sah along with 15 to 20 villagers and saw that Surajdeo Singh, Kunjlal Singh, Raj Mohan Singh, Nand Bihari Giri, Chandrika Singh, Shiv Shankar Mahto were assaulting Arjun Sah. He further stated that Bhola Sah was standing west to Arjun Sah. He further deposed that Sanjay Sah and Bijul Sah took shelter in the house of Shiv Prasad Saw, thereafter 40 to 50 Paliyar people starting chasing them, then he fled away. He went to Latehar. He further deposed that at Latehar he met with Nikul Prasad with whom he disclosed about the occurrence. Thereafter he met Brind Kumar (P.W. 11) and disclosed him about the occurrence. Thereafter said Brind Kumar met with Superintendent of Police and disclosed him about the occurrence. He further states that he found Dasrath Singh, Nankhu Singh, Suren Singh, Ashok Singh, Jagnarayan Singh, Jairam Singh, Anant Singh, Bijendra Singh, Satyanarayan Singh, Mudrika Singh, Gora Singh, Bhuneshwar Singh, Garju Singh, Preman Singh, Ram Pratap Singh, Ram Prasad Singh, Shishupal Singh, Kuleshwar Singh, Jagsharan Singh, Madha Singh, Umakant Singh, Chandra Nath Singh, Shyam Sunder Singh, Ganga Dhar Singh and Rajendra Singh and Nagar Dayal Singh 15 present near the place of occurrence, armed with Garasa, Bhala and sword. During the cross examination, he admits that his statement was recorded by the police after 20 days of the occurrence. Though, he admits that he went to the house of Superintendent of Police, Latehar along with Brind Kumar but why his statement recorded after 20 days of occurrence, no explanation given by the prosecution. His attention was drawn to his previous statement made before the police and it was suggested that he has not stated before the police that Surajdeo Singh, Kunjlal Singh, Raj Mohan Singh, Nand Bihari Giri, Chandrika Singh and Shiv Shankar Mahto had committed murder of Arjun Sah and Bhola Saw was standing in the west side, who was also killed after chasing. From perusal of statement of this witness at paragraph no. 106 of the case diary, we find that he has not stated so. Thus, it appears that he made development in the case of prosecution. It also appears that he has also not taken the name of other accused persons before the police. It is admitted position that this witness is in side the jail in connection with cross case i.e. Sessions Trial No. 172 of 1989. He also admits that he is accused of gang rape case. He is also accused of keeping explosive substance. Thus, we find that he has made development in the case of prosecution after meeting with other witnesses in the jail premises. Thus, we find that he is not a trustworthy witness.
22. P.W. 9 Binod Prasad has stated that on hearing hulla he went to the house of Harihar Sah and saw that Madha Singh, Suren Singh, Bindeshwar Singh, Bhuneshwar Singh along with 40 to 50 persons were surrounded Bhola Sah and assaulting him with Bhala and Garasa. Thereafter he fled away. His attention was drawn to this previous statement made before the police, to which he admits that he stated that after seeing aforesaid accused persons who were armed with lathi, Garasa and Bhala, he fled away. Thus, it appears that he tried to become an eye witness of the murder of Bhola Saw. It is worth mentioning that this witness was also examined by the police on 29.6.1988 in Latehar Jail, where other prosecution witnesses were lodged.
16Thus, it appears that he made development in the story of prosecution after due deliberation with other witnesses, which makes him untrustworthy.
23. P.W.10 Satish Kumar has stated that after hearing hulla he went to the house of Harihar Sah and saw that Chandrika Singh, Jai Ram Singh, Surajdeo Singh, Kunj Lal Singh, Raj Mohan Singh, Dashrat Singh, Shiv Shankar Yadav were assaulting Arjun. Thereafter he went to police station along with P.W. 12 Mukesh. During the cross examination, this witness stated that at latehar, he met with the police and stated him about the occurrence but from perusal of case diary, we find that his statement was taken by the police on 29.6.10988 while he was in jail custody. It further appears that his claim has not been corroborated by P.W. 12. Under the said circumstance, we find that this witness has also cooked up a false story on deliberation with other witnesses.
24. P.W. 11 Brind Kumar is an Advocate, who has proved his signature on inquest reports which were marked as Axt. 2 to 2/6. This witness had not stated anything about the occurrence.
25. P.W. 12 Mukesh Kumar has been tendered and he has not stated anything about the occurrence nor he corroborated the statement of P.W. 10.
26. P.W. 13 Satyendra Kumar has stated that on 23.5.1988 he was going to bring wood from the forest along with Ayodhya Sah, in the way at Mahabir Sthan he was restrained by Bihari Giri. However, Ayodhya Sah went to the forest. He also stated that Surajdeo Singh, Kunjlal Singh, Mohan Singh and Uday Gri are also present there. He further states that Mohan Sah (P.W. 4) came, who was asked to call Brajesh Sah (P.W. 3). Thereafter Doman Sah came but when on his request P.W. 13 not freed, he went away. Thereafter Surajdeo Singh, made hulla and then all Paliyar people went forward. Thereafter he fled away. During the cross examination, he stated that he had been assaulted by Bihari Giri and Uday Giri due to that he received injuries on his eye. He was treated at Chandwa, but from perusal of record, we find that his injury report has not been produced. Thus, from the 17 perusal of entire evidence of this witness, we find that he has not stated anything about the occurrence of murder. It further appears that among te person who restrained him, he took the name of one Uday Giri but the said Uday Giri has not been made accused in this case. He tried to support the evidence of P.W. 2 and 4 but as we come to the conclusion that aforesaid two witnesses are not trustworthy, thus, we find that this witness is not relevant for proving the charges leveled against the appellants.
27. P.W. 14 is the son of Harihar Sah. He stated that at the time of occurrence, he was grazing his buffalo and at that time he saw that fifty persons surrounded his house. From among them he identified Surajdeo Singh, Bihari Giri, Dashrat Singh, Mohan Singh, Mohar Singh. He also deposed that they were armed with Bhala and Garasa. He further said that from among the aforesaid persons one had exhorted for putting fire in his house, thereafter he fled away. However, his attention was drawn to his previous statement that he had not stated before police that accused persons exhorted for putting fire in his house. Thus, it appears that he made material development.
28. P.W. 15 is the informant of this case; he has not supported the case of prosecution and has been declared hostile.
29. P.W. 16 Janardan Mishra has prepared map which has been marked as Ext.- 4. During the cross examination he states that he has not prepared the map of place of occurrence rather he prepared the map showing the dead body found at different places. He has not stated anything about the occurrence.
30. P.W. 17 has proved the handwriting and signature of Dr. Birbal Prasad Bhagat on the post mortem report which was marked as Ext.5 to 5/6.
31. P.W. 18 Dr. Sidhnath has been examined to prove the various injuries found on the body of injured Arjun Sah, Bijul Sah, Mohar Sah, Bhola Sah, Ram Bilas, Sanjay Prasad and Shiv Prasad Sah. It is relevant to mention here that P.W. 18 had not conducted the post mortem report and he has not given the full description of injuries found on the dead body of different 18 deceased.
32. P.W. 19 is an Advocate Clerk who has proved the inquest report of deceased Ram Bilash Prasad Sah, Bijul Sah, Arjun Sah, Shiv Prasad, Mohar Sah which were marked as Ext.- 8 to 8/6. He has also proved the case diary from paragraph to 63 and 64 to 191 which were marked as Ext.-9.
33. Thus from careful examination of aforesaid witnesses, we find that P.W. 2,3,4,5,6,7,8,9 and 10 have been produced as eye witnesses of occurrence, but from perusal of their evidence, we find that they made material contradiction in their depositions from that of their previous statement made before the police. It also appears that they have been examined by the police after much delay i.e. after about one month of the occurrence. There is absolutely no explanation as to why they have not been examined on the date of occurrence. From perusal of evidence of these witnesses, it is clear that they are present in the village when the police came, but in spite of that their statement not recorded by the police. It also appears from the case diary that they made statement before the police while they were in the jail custody in connection with S.T. No. 172 of 1989. Under the said circumstance, we find that they have sufficient time to make deliberation and cooked up a story for falsely implicating the appellants because of previous enmity and village rivalry.
34. The Hon'ble Supreme Court in Jagjeet Singh Vs. State of Punjab reported in (2005)3 SCC 689 has held that if there is a delay in examining the witnesses in course of investigation, the same will create a serious doubt on the reliability of said witness in absence of any explanation for late examination. The Hon'ble Supreme Court in Ganesh Bhavan Patel Vs. State of Maharastra reported in (1978) 4 SCC 371 has held that if there is undue delay on the part of Investigating Officer in recording the statement of witnesses, the same casts a serious doubt on their being eye witness of the occurrence. Para 15 of the aforesaid judgment is quoted hereinafter for better appreciation:-
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 19 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, Cr.P.C. were recorded on the following day. Welji (P.W. 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 eye-wetnesses 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 eye-witnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case.
In the aforesaid case though witnesses are present in the village when the police arrived at the scene of the occurrence but police recorded their statement after one day of the occurrence, considering the same the Hon'ble Supreme Court rejected the evidence of witnesses by holding that the police gave sufficient time to the prosecution party for cooking a story and introducing eye witnesses.
35. In the instant case, as noticed above, though witnesses are present in the village, when police arrived but they did not choose to give statement and their statement not recorded by the police. It appears that their statement recorded after about one month of occurrence while all of them are inside the jail in connection with cross case being S.T. No. 172 of 1989. Thus all the witnesses had sufficient time to make deliberation and cooked up a story for becoming of eye witnesses of the occurrence.
36. It is worth mentioning that the Investigating Officer has not been examined in this case, therefore, there is absolutely no explanation as to why the so called eye witnesses were examined after about one month of the occurrence. Under the said circumstance, un-explained delay in examining the witnesses u/s 161 of Cr.P.C. rendered them untrustworthy and unreliable.
37. In the instant case, as noticed above, I.O. has not been 20 examined. Due to the non examination of I.O., in our view, serious prejudice had been caused to the defence, because defence had elicited various contradictions in the evidence of eye witnesses which they are not able to prove. We further find from the map Ext.-4 and inquest reports that the dead body of different deceased lying at different places. In this case, almost all the witnesses claimed that after hearing hulla, they went near the house of Harihar Sah from Devi Mandap road and from that place they say the occurrence. Under the said circumstances, topography of the places, where dead bodies were lying, is very much important to verify the claim of witnesses as to whether the said places are visible from the places where the witnesses were standing. Due to non examination of I.O., aforesaid topography has not been brought on record. In the instant case even the contents of the inquest report has not been proved, which also prejudiced the defence. Thus, we find that due to non examination of I.O., defence has been prejudiced and therefore non examination of I.O. is fatal to the case of prosecution.
38. We find that the court below had convicted the appellants under sections 323 /34 of IPC for assaulting Doman Sah, Harihar Sah and Yasoda Devi. Doman Sah has claimed that he has been treated at Latehar Hospital, but no injury report brought on record. Under the said circumstances, non production of injury report coupled with the fact that Doman Sah has been held to be an untrustworthy witness, we find that the prosecution had not been able to prove the assault on Doman Sah. So far the assault on Yasoda Devi and Harihar Sah is concerned, the aforesaid two persons had not been examined nor their injury report brought on record. There is absolutely no explanation as to why they have not been examined, though they have been shown as charge sheet witnesses. It is also relevant to mention that no other witnesses stated that Doman Sah, Harihar Sah and Yasoda Devi received injuries in course of occurrence. Thus, we find that conviction of appellants under sections 323/34 of the IPC is absolutely illegal. So far the conviction of appellants under section 302/34, 436/34 and 341/4 of IPC are concerned, we already came to the 21 conclusion that the depositions of eye witnesses i.e. P.W. 2 to 10 and P.Ws. 13 and 14 are not trustworthy because they have made material contradiction in their depositions coupled with the facts that they have been examined by the I.O. after much delay without any explanation, we find that the said charges also not proved in this case.
39. In view of the discussions made above, we find that prosecution had not been able to prove the charges leveled against the accused persons beyond the shadow of all reasonable doubt. Accordingly, we conclude that the impugned judgment of conviction and order of sentence cannot be sustained in this appeal.
40. In the facts and circumstances of the case, this appeal is allowed. Judgment of conviction dated 17.06.2005 and order of sentence dated 22.06.2005 passed by the Additional Sessions Judge (F.T.C.), Latehar in Sessions Case No. 171 of 1989 and 171A of 1989) are set aside. It appears that the above named appellant nos. 3, 6, 7, 9, 11, 12, 14, 15, 18, 19, 21, 23, 25, 26, 27, 28, 29, 30 and 31 are in custody. They are directed to be released forthwith from the custody, if not required in any other case. Consequent thereof, the above named appellant nos. 1, 8, 10, 17 and 24, who are already on bail are discharged from the liabilities of their respective bail bonds.
(D.N. Patel, J) (Prashant Kumar, J) Jharkhand High Court Ranchi The 4th October, 2012 Sharda/NAFR