Patna High Court
Shambhu Mahto @ Sambhu Surhi vs State Of Bihar on 11 January, 2018
Author: Anil Kumar Upadhyay
Bench: Chief Justice, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
(Against the judgment of conviction and order of sentence dated
18.10.1993passed by Shri D. G. R. Patnaik, learned 3rd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 219 of 1992 / 1 of 1993, arising out of Riga P.S. Case No. 123 of 1992) Criminal Appeal (DB) No.493 of 1993 ===========================================================
1. Kameshwar Choudhary, son of Gonaur Choudhary, resident of Village Parsauni, P.S.- Parsauni, District- Sitamarhi.
2. Ram Naresh Choudhary, son of Ram Roop Chaudhary, resident of Village Parshurampur, P.S.- Parsauni, District- Sitamarhi .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s with =========================================================== Criminal Appeal (DB) No. 548 of 1993 =========================================================== Shambhu Mahto @ Sambhu Surhi, Son of Darwa Mahto, resident of Village-
Sangram Thandah, P.S.- Riga, District- Sitamarhi. .... .... Appellant/s
Versus
The State of Bihar .... .... Respondent/s
=========================================================== Appearance :
(In CR. APP (DB) No.493 of 1993) For the Appellant/s : Mr. Kanhaiya Prasad Singh, Sr. Advocate Mr. Jagjit Roshan, Advocate Mr. Apul, Advocate For the Respondent/s : Mr. Abhimanyu Sharma, APP (In CR. APP (DB) No.548 of 1993) For the Appellant/s : Mr. Kanhaiya Prasad Singh, Sr. Advocate Mr. Jagjit Roshan, Advocate Mr. Rajeev Ranjan, Advocate For the Respondent/s : Mr. Abhimanyu Sharma, A.P.P. =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY) Date: 11-01-2018 Both the Appeals are in the 3rd row of batch of cases arising out of Sitamarhi riot of 1992.
Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 2/20
2. The present batch of appeals have been filed against the judgment of conviction and order of sentence dated 18.10.1993 passed by Shri D. G. R. Patnaik, learned 3rd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 219 of 1992 / 1 of 1993, arising out of Riga P.S. Case No. 123 of 1992, whereby the appellant, Shambhu Mahto @ Shambhu Surhi, of CR. APP (DB) No.548 of 1993, has been convicted under Section 302 of the Indian Penal Code and has been awarded sentence to undergo imprisonment for life. The appellants, namely, Kameshwar Choudhary and Ram Naresh Choudhary, CR. APP (DB) No.493 of 1993, have been convicted under Sections 302/109 and 436/109 of the Indian Penal Code and have been sentenced to undergo Rigorous Imprisonment for life under both counts i.e. under Sections 302/109 and 436/109 of the Indian Penal Code. However, the trial court acquitted Kameshwar Prasad Sinha @ Kameshwar Compounder against whom there was definite case of involvement in the communal riot.
3. The prosecution case, in brief, is that on 08.10.1992 at 1.00 P.M. one Momin Khatoon (P.W.3), resident of Village- Madhuban, P.S. and District- Sitamarhi, gave her fardbeyan before the officer-in-charge of Riga police station, namely, N.D. Khan (P.W.6) at Riga Bazar near her burnt house alleging inter alia therein that she after the death of her husband was residing at her father's Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 3/20 place since more than 8-9 years in Riga Bazar. At that time her mother and nephew Md. Haroon were also there. At about 11 A.M., she heard halla from bazaar side and out of curiosity she came out of her house and then saw that near the saw mills of Mukesh Chourdhary and Kameshwar Choudhary in frontn of her house some persons had assembled, out of whom most of them were the labourers working in the saw mills aforesaid. It is further alleged that both the saw mill owners were instigating them and were saying that the house situated in front, having the house of Muslim should be set on fire and the inmates should be killed. On this instigation, the labourers of the saw mills, who all are residents of village Bakhri, whom the informant claimed to identify after seeing their face, variously armed with lathi, bhala and Farsa moved forward towards her house, upon which the informant due to fear fled away and concealed herself in the nearby sugarcane field and continued looking towards her house. From there she saw that the rioters set on fire her tiled as well as the thatched house. After the house was set on fire, when her father Rajak Shah, mother Sakila Khatoon came out, both of them were killed by means of Farsa and sword and thrown in the fire. The informant's nephew Md. Haroon, aged 5 years, was also thrown in the fire by the rioters with a view to kill him. In the said occurrence all the aforesaid three family members died and the whole house was also burnt. The Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 4/20 occurrence was alleged to have been witnessed by the nearby persons, who on enquiry will disclose.
4. Out of the rioters, she had seen her neighbour Shambhu Mahto @ Shambhu Surhi, Kameshwar Compounder (not appellant, as he was acquitted), who were armed with rod in his hand, and had participated in the whole occurrence. The Rioters with a view to demolish evidence has thrown the dead bodies in the fire.
5. The motive as alleged by the informant behind the occurrence was that the owner of the saw mill instigated the labourers that the house in front of saw mill was of Muslim community and as such their house may be put on fire and the resident of the house be killed. The aforesaid fardbeyan was read over to the informant and she put her thumb impression in presence of witnesses.
6. On the basis of the Fardbeyan, the formal F.I.R. was registered as Riga P.S. case no. 123 of 1992 for the offence under Sections147, 148, 149, 302, 436/201 and 153(A) of the Indian Penal Code. The case was registered against Mukesh appellant Kameshwar Choudhary of CR. APP (DB) No.493 of 1993 and appellant Shambhu Mahto @ Shambhu Surhi CR. APP (DB) No.548 of 1993 and Kameshwar Compunder and some unknown.
7. The police after investigation submitted charge- sheet against the appellants and Kameshwar Compounder and after Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 5/20 cognizance, the case was committed to the Court of Sessions. On framing of charge, the accused persons pleaded not guilty and claimed that they have been falsely implicated in the fabricated F.I.R.
8. On behalf of the prosecution, 8 witnesses were examined. P.W. 1 is Abdul Jabbar Shah, P.W. 2 is Mukim Shah, P.W. 3 Momina Khatoon is the informant of the case, P.W.4 is Phool Kumari, P.W.5 is Md. Irfan, P.W.6 N. D. Khan is the investigating officer of the case. P.W. 7 is Dr. Binod Kumar Mehta, who conducted the post-mortem on the dead body of the deceased. P.W.7 is Shambhu Prasad.
9. The defence also examined 6 witnesses. D.W. is Dr. Yugal Kishore Chaudhary, D.W.2 is Babunandan Prasad, P.W. 3 is Fekan Sah, P.W.4 is Sanjay Kumar, P.W.5 is Mohan Prasad Gupta and P.W.6 is Jagannath Pd. Choudhary.
10. The trial court on scrutiny of the evidence, convicted the appellant Shambhu Mahto @ Shambhu Surhi, of CR. APP (DB) No.548 of 1993, under Section 302 of the Indian Penal Code and awarded sentence to undergo imprisonment for life. The appellants, namely, Kameshwar Choudhary and Ram Naresh Choudhary, CR. APP (DB) No.493 of 1993, have been convicted under Sections 302/109 and 436/109 of the Indian Penal Code and have been sentenced to undergo Rigorous Imprisonment for life under Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 6/20 both counts i.e. under Sections 302/109 and 436/109 of the Indian Penal Code, whereas Kameshwar Compounder was acquitted by the trial court.
11. Mr. Kanhaiya Prasad Singh, learned senior counsel appearing on behalf of the appellants in these two appeals, submitted that the present case is false and fabricated case. In fact, in communal riot, these appellants have been falsely implicated on account of previous acquaintance and not on account of any actual participation in the communal riot or such behaviour or act. Mr. Singh at the very out set submitted that the occurrence took place at 1.00 P.M. approximately on 08.10.1992, but the F.I.R. reached the Court of C.J.M. after five days, this delay in send ing the F.I.R. is sufficient for drawing conclusion of false implication, particularly, in case of involvement of communal riot. Mr. Singh next submitted that in the instant case, from perusal of fardbeyan it appears that the fardbeyan was written by N.D. Khan (P.W.6) officer-in-charge of Riga police station, near the burnt house of informant Momina Khatoon (P.W.3). According to the F.I.R., the occurrence of riot, arson and loot took place at around 11.00 A.M., the informant of this case allegedly out of curiosity come out of her house and saw that near the saw mill of the appellant Kameshwar Choudhary and Mukesh Choudhary and several persons assembled and they were instigated by the saw mill owners Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 7/20 and on the instigation the labourers of the saw mills, who are the villagers of Bakhri variously armed with Lathi, Bhala, Gadasa etc. moved towards her house and in the aforesaid circumstance the informant out of fear fled away and concealed herself in the nearby sugarcane field. She saw the rioters having set on fire her house. The rioters killed her father Rajjak Shah and mother Shakila Khatoon and her nephew Md. Haroon thrown in the fire by the rioters and all the three died. She claimed that she saw her neighbour Sambhu, Kameshwar, armed with rod in their hands, had participated in the occurrence and in order to destroy the evidence, the rioters have burnt the dead body in the fire.
12. Mr. Singh submitted that in fact Mr. N. D. Khan is not the author of the Fardbeyan, it was not written by N. D. Khan, but by Kharagdhari Yadav. This N.D. Khan has acted in most partisan manner and instead of undertaking proper investigation has played role in falsely implicating many persons and in fact this Court has occasion to consider the conduct of Mr. N. D. Khan while deciding the batch of appeals in Ash Narayan Sah and other appellants of Cr. Appeal (DB) No. 559 of 1993 and other analogous appeals and Cr. Appeal (DB) No. 7 of 1994 and other analogous appeals.
13. Mr. Singh submitted that the informant of the case, who claimed that she was residing in her father's place since Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 8/20 more than 8-9 years in Riga Bazar and as such she claimed that she could identify the real miscreants involved in the communal acts including setting her father's house on fire and killing of her mother, father and nephew in the communal riot. Mr. Singh submitted that the informant cannot be relied upon for the reasons (a) that she herself fled away and concealed herself in the sugarcane filed and as such it is improbable that she has seen the occurrence. (b) The informant has claimed that Kameshwar Compunder has also participated in the riot and Kameshwar Compunder has pleaded alibi and ultimately the trial court acquitted him and to that extent the prosecution case was found to be false. Therefore, the claim that she identify the real assailant involved in the riot while concealing herself in a sugarcane field is most unrealistic and unreliable.
14. Mr. Singh submitted that in the instant case, out of 8 witnesses examined on behalf of the prosecution, P.W.3 is the informant, P.W.8 and P.W.6 are the investigating officers, P.W.7 is the doctor. Mr. Singh submitted that in the instant case on behalf of the prosecution documentary evidence were led and at the same time the defence has also placed on record various documentary evidence to demonstrate the falsehood in the prosecution case. Out of 8 witnesses examined on behalf of prosecution, only the informant claims to be the eye witness and in view of the facts and Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 9/20 circumstances indicated hereinabove, learned senior counsel submitted that she (informant) cannot be treated as eye witness and from the version of the informant in the fardbeyan and the statement in the court, it is manifest that there are improvement in her statement in the court. In the court, for the first time, she has introduced the story of Shambhu Mahto, appellant of Cr. Appeal (DB) No. 548 of 1993, that he has thrown the minor child in the fire. In the F.I.R. she has not named the appellant Ram Naresh Choudhary @ Naresh Choudhary. In the Court she improved her story that she knew Ram Naresh Choudhary @ Naresh Chaudhary as Mukesh.
15. Mr. Singh submitted that in the fardbeyan, the informant claimed that the labourers of two saw mills assembled and the owner of the two saw mills instigated them, who committed the crime of arson loot and killing, but in the court she resiled from her earlier version and stated that the rioters assembled at the saw mill of Ram Naresh Choudhary, who was not mentioned in the fardbeyan, the aforesaid contradiction in the informant version creates serous doubt about her claim as to identifying the owner of the saw mill, who allegedly instigated the residents of village Bakhari, who were labourers in the saw mill.
16. Referring to the discussion of the trial court, Mr. Singh submitted that the trial court has also admitted exaggeration and Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 10/20 omission in the version of the informant (P.W.3), which is not natural and reasonable omission, but intentional and deliberate. In this case P.W.4 was declared hostile, who deposed in the court that the informant was not residing in the father's place, which falsifies the foundation of the case that the informant used to reside in the father's place for the last 8-9 years and, as such, she was acquainted with the owner of the saw mill and the labouerers, who were working in the saw mill. This hostile witness is categorically deposed on the point that she came to her father's place only three days ahead the occurrence.
17. Referring to the circumstances where the informant has concealed herself in the sugarcane field, Mr. Singh submitted that (i) it is difficult to identify the detail account of commission of crime out of a mob of 30-35 persons with such minutes details, (ii) it is difficult to see such actual occurrence while concealing in the sugarcane field, (iii) the informant has improved her case from fardbeyan to the court in the matter of leveling allegations against the appellants Shmabhu Mahto of throwing her nephew on fire and developing the story of involvement of the appellant Ram Naresh Choudhary @ Naresh Choudhary to the extent that she knows her in the name of Mukesh. The claim of identification on the basis of her familiarity due to stay at her father's place for 8-9 years stands also Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 11/20 contradicted in the deposition of P.W.4, who stated in the Court that only three days ahead of the occurrence, she came to her father's place and under the aforesaid circumstances, it is improbable for the informant to identify the actual occurrence by the appellants and giving such vivid details of riot.
18. Mr. Singh submitted with reference to Riga P.S. case no. 122 of 1992 that the said case was registered at the instance of the Sub-Divisional Officer, Sitamarhi, who was in the law and order duty, but the said Magistrate has not said anything about the killing of three persons in the riot, although he has said that house of Rajjak Mian was set on fire by the rioters. Mr. Singh referring to the totality of the facts situation submitted that the fardbeyan was ante- dated and it was improved at the instance of the officer-in-charge of Riga police station, who was subsequently withdrawn from the investigation owing to his bias attitude. Mr. Singh submitted that in the instant case, although the fardbeyan was recorded by Mr. N. D. Khan, but in his deposition it has come that in the fardbeyan Mr. N. D. Khan has signed and it was actually written in the hand writing of A.S.I. Kharagdhari Yadav. Referring to the station diary, Mr. Singh submitted that from the station diary, it would be evident that Kharagdhari Yadav, who has recorded the fardbeyan in his hand writing was not examined in this case and the station diary indicate Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 12/20 that Kharakdhari Yadav left Riga police station on 08.10.1992 at 8.00 A.M. and returned back to Riga police station only on 11.10.1992 and thus in the aforesaid circumstance it is impossible for Kharakdhari Yadav to record the fardbeyan in his hand writing either on 08.10.1992 or any time prior to 11.10.1992 and as such considering the totality of the facts situation, it would manifest that the fardbeyan was recorded after arrival of Kharagdhari Yadav on 11.10.1992, as he only returned back to Riga police station on 11.10.1992 and that is the reason, the F.I.R. reached the court of C.J.M., Sitamarhi only on 13.10.1992 and in the meanwhile every manipulation was done in incorporating the name of the appellants after due deliberation and under active role played by N.D. Khan in fabrication of the F.I.R., as it is not in dispute that N.D. Khan has not recorded the fardbeyann of the informant and the Kharagdhari Yadav was neither available on 08.10.1992 after 8.00 A.M. for recording the fardbeyan of the informant. Thus, in the totality of the facts situation, the possibility of ante-dating the fardbeyan and fabrication of the F.I.R. is most probable.
19. Mr. Singh next submitted that in the present case when according to the informant 30-35 persons participated in the riot, none of the appellants have been convicted under Section 147 or 149 of the Indian Penal Code, which runs contrary to the basic case of Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 13/20 the prosecution. Referring to the judgment of the trial court Mr. Singh submitted that the trial court has committed error in convicting the appellants with the aid of Section 109 of the Indian Penal Code. Mr. Singh submitted that while acquitting Kameshwar Prasad Sinha @ Kameshwar Compounder, the trial court has disbelieved the story of alibi, but acquitted him on the ground that from the material available, he was only a member of unlawful assembly and thus the trial court adopted two different yardstick, one for convicting the appellants and the other for acquitting Kameshwar Prasad Sinha @ Kameshwar Compounder.
20. Mr. Singh submitted that the prosecution has miserably failed to prove the time of occurrence, manner of occurrence, non-examination of the ASI Kharagdhari Yadav, the circumstances suggesting improbability of the informant identifying the accused person with such minutes/details while concealing herself in sugarcane field out of 30-35 rioters renders the prosecution case not established beyond all reasonable doubts. Non-examination of the independent witness and the fact that the deceased were killed by mob, the appellants deserve benefit of doubt in such a case where there are contradiction in the evidence of prosecution and improbability of identifying the appellants by the informant and the contradiction in the version of identification of accused and Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 14/20 improvement of case for the first time in court.
21. Mr. Abhimanyu Sharma, learned APP appearing on behalf of the State has tried to defend the judgment of conviction. However, when confronted with the judgment of this Court in the case of Ash Narayan Sah and other appellants of Cr. Appeal (DB) No. 559 of 1993 and other analogous appeals dated 17.10.2017 and the judgment of this Court in Cr. Appeal (DB) No. 7 of 1994 and other analogous appeals dated 11.11.2017 Mr. Sharma conceded that more or less in the present case the prosecution has not been able to explain the inordinate delay in reaching the F.I.R. to the Court of C.J.M., Sitamarhi, which indicate manipulation and fabrication in the F.I.R. and false implication. In the aforesaid two sets of the judgment, this Court has noted the various aspects of lapse in investigation and the trial and extending the benefit of doubt allowed the appeals.
22. We have considered the rival submissions of the parties and also examined the judgment in the case of Ash Narayan Sah and other appellants of Cr. Appeal (DB) No. 559 of 1993 and other analogous appeals dated 17.10.2017 and the judgment of this Court in Cr. Appeal (DB) No. 7 of 1994 and other analogous appeals dated 11.11.2017, where this Court has noted the facts and circumstances, which render the prosecution case under serious doubt and the fact that in both the sets of appeals, this Court has noted the Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 15/20 conduct of N.D. Khan in the matter of recording fardbeyan and withholding of the author of fardbeyan in Cr. Appeal (DB) No. 559 of 1993 and other analogous appeals dated 17.10.2017 and the admission of the author of the fardbeyan in Cr. Appeal (DB) No. 7 of 1994 and other analogous appeals dated 11.11.2017. We have also noted the fact that fardbeyan was not recorded by N.D. Khan in both the analogous appeals. In the fardbeyan, it was noted that fardbeyan was recorded by N.D. Khan, In those analogous appeals, the real author, in whose hand writing the fardbeyan was recorded, was not present at the pace of recording of fardbeyan and the circumstances were conclusive that fardbeyan was recorded subsequently at the instance of N.D. Khan, after due deliberation and improvement and as such the appeals were allowed.
23. We have given our anxious consideration to the entire prosecution case and find that no explanation for the delay in recording of fardbeyan and the delay in reaching the court of C.J.M., the formal F.I.R. was drawn on 08.10.1992, but it reached the court of C.J.M. only on 13.10.1992. In fact the Apex Court has held out in numerous cases that the delay in sending the F.I.R. creates serous doubt about the false implication and improvement. Reference in this connection is being made to the Apex Court judgment in the case of State of Punjab Vs. Tarlok Singh, reported in (1972) 3 SCC 869 (para Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 16/20
5) and in the case of Ishwar Singh Vs. the State of Uttar Pradesh, reported in AIR 1976 SC 2423 (para 5 and 9).
24. Para 5 of the Judgment of State of Punjab Vs. Tarlok Singh, reported in (1972) 3 SCC 869 is quoted herein below for ready reference:
"5. First, the High Court noticed the suspicion created by the circumstance that the copy of the First Information Report purported to have been lodged at 3.45 p.m. did not reach the Magistrate at Dasuya till 8 a.m. the next day, even though it was sent through a special messenger. The distance between the scene of occurrence & Dasuya was only 15 or l6 miles. The inference sought to be drawn is that, in fact, the report was not lodged at 3.45 p.m., but at a much later hour, after the police had arrived at the scene of occurrence and there were consultations to decide what version should be put forward and who should be implicated for the murder. The prosecution, in fact, made no attempt to explain this delay. Such delay, thus, caste doubt on the prosecution version that the Report was lodged at 3.45 p m. without lapse of unnecessary time."
25. Para 5 and 9 of the judgment of Ishwar Singh Vs. the State of Uttar Pradesh, reported in AIR 1976 SC 2423 are quoted herein below for ready reference:
5. Mr. Frank Anthony appearing for appellant Ishwar Singh submitted that in affirming the Judgment of the trial Court, the High Court also overlooked certain important aspects of the case Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 17/20 that the Sessions Judge had failed to consider. He pointed out that the F.I.R. which is stated to have been lodged at 9.05 A. M. on February 14, 1973 was sent out from the police station the next day, February 15; the time when it was despatched is not stated, but it appears from the record that the Magistrate received it on the morning of February
16. The Court of the Magistrate was nearby, which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the police station. Section 157 of the CrPC, 1898 as well as of 1973 both require the first information report to be sent "forthwith" to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in Court differs at least in two very important particulars from that narrated in the F.I.R. Mahabir Singh, who lodged the first information report, stated in-Court that he had invited some people to his house to effect a settlement between him and Ishwar Singh, and that he had also sent Ghanshyam to call Ishwar Singh there. The F.I.R. does not mention anything like this. From the F.I.R. it appears as if the accused persons came uninvited to his house, demanded why he had demolished the drain, and started Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 18/20 assaulting him and the other persons who were present there. It is also difficult to understand why Mahabir should invite anyone to his house for a settlement, if really Ishwar Singh had permitted him to demolish the drain as he claimed. Further, the F.I.R. does not mention that Mahabir and Satyapal wielded lathis in their defence when attacked and that this resulted in some of the accused getting injured; but that is what both Mahabir (P.W. 1) and Satyapai (P.W. 2) stated in their evidence in Court.
These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye-witnesses "cannot be accepted at its face value", as observed by this Court in Mitter Sain v. State of U.P.
9. We have pointed out that the trial Court in convicting the appellants overlooked certain significant features of the case, namely, the inordinate and unexplained delay in despatching the first information report to the Magistrate; the difference in the account given by the prosecution witnesses and as appearing from the first information report of the occurrence; the absence of any statement in the first information report as to the injuries received by some of accused, and the non-examination of material witnesses. The High Court in affirming the Judgment of the trial Court also failed to advert to these circumstances. We do not therefore think that the case against the appellants has been proved beyond reasonable doubt. The appeals are accordingly allowed and the Order of conviction and the sentences passed on the appellants are set aside We direct that the appellants be set at liberty forthwith."
Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 19/20
26. On analysis of the entire material available on record, we are of the considered view that in the present case, the informant claims to be the only eye witness. However, on analysis of her statement, we find not only the contradictions but improvement from the statement before the police to the statement in the Court. The informant has introduced the case for the first time in the court to implicate the appellant Ram Naresh Choudhary. She has introduced the different story for identifying Ram Naresh Choudhary as instigator in the instant case. We also find the totality and the facts situation rendering the informant's case of identification improbable, the manner in which the fardbeyan was recorded is mysterious, the delay in reaching the F.I.R. to the court of C.J.M. creates reasonable doubt about false implication and in view of statement of the hostile witness (P.W. 4), the claim of the informant is under serious doubt that she was staying at her father's place for the last 8-9 years and under such circumstance, the claim of identifying the appellants while concealing herself in the sugar cane field is not free from error.
27. Thus, in the totality of the facts and circumstances, we are of the considered view that the appellants deserve benefit of doubt. Accordingly, extending the benefit of doubt in the present case and relying upon the same parameters, which we have followed and decided two other batch of appeals i.e. Cr. Appeal Patna High Court CR. APP (DB) No.493 of 1993 dt.11-01-2018 20/20 (DB) No. 559 of 1993 and other analogous appeals on 17.10.2017 and Cr. Appeal (DB) No. 7 of 1994 and other analogous appeals on 11.11.2017, we allow the present batch of appeals, set aside the judgment of conviction and acquit the appellants. Since all the appellants are on bail, they are discharged from the liabilities of their bail bonds.
28. In the result, both the appeals are allowed.
(Rajendra Menon, CJ)
Uday/- (Anil Kumar Upadhyay, J)
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.01.2018
Transmission 19.01.2018
Date