Indian Kanoon - Search engine for Indian Law

12. It is submitted by learned counsel for the appellants that there is only one eye witness of the occurrence who happens to be informant, Sumitra Devi (P.W.8) of the case but her statement is quite contradictory and not reliable. Moreover, as per account of the witnesses Manoj Kumar Yadav (P.W.5) and Sanjay Yadav (P.W.6) they had given statement to the police prior to the informant and after recording their statement they put their signature thereon in the night but the aforesaid statement of the said witnesses, which happens to be first information report has not been brought on record by the prosecution rather concealed which creates serious doubt about the prosecution case. Though other witnesses do not happen to be eye witness of the occurrence rather they claimed to have witnessed the accused persons escaping from the place of occurrence just after the occurrence, but they are not reliable as there is vital contradiction between their testimonies regarding their presence on the place of occurrence and also regarding the number of accused persons escaping from there. It is further submitted that Manoj Kumar Yadav (P.W.5) in para-1 of his examination-in-chief has stated that he spotted two persons Patna High Court CR. APP (DB) No.670 of 2012 dt.28-03-2019 escaping from the place of occurrence in the torch light but he did not identify them. The said statement of P.W.5 also creates serious doubt about the prosecution case as the appellants happen to be next door neighbour of the said witness. So had they been involved in the occurrence they must have been identified by the said witness. It is further submitted that the deceased was gunned down from the short range while he was sleeping on the chauki so the profuse blood must have oozed out from his persons and fallen on the chauki and the floor but the I.O. has not reported about finding of any blood or empty cartridge from the place of occurrence which also creates serious doubt about the manner of occurrence and place of occurrence as well. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants beyond all reasonable doubt by adducing trustworthy, convincing and reliable evidence. Hence, the impugned judgment and order of conviction and sentence passed against the appellants by the learned Trail Court is liable to be set aside and the appellants are entitled to be acquitted.

14. From perusal of record, it appears that to substantiate its case the prosecution has examined eight material witnesses in the case, out of them Vijay Kumar Yadav (P.W.7) has turned hostile. From perusal of the testimony of the rest witnesses, it appears that only Sumitra Devi (P.W.8), who happens to be informant of the case, has claimed to have witnessed the occurrence, while rest other witnesses are not the eye witnesses of the occurrence rather they have claimed to have witnessed the accused persons escaping from the place of occurrence just after the occurrence. But from perusal of the Patna High Court CR. APP (DB) No.670 of 2012 dt.28-03-2019 testimony of the said witnesses there appears to be serious doubt about the presence of the aforesaid witnesses at the place of occurrence and witnessing the accused persons escaping after the occurrence. As Nanhe Yadav alias Naresh Prasad Yadav (P.W.1) has stated in para-1 of his examination-in-chief that when he arrived at the place of occurrence responding the firing sound he found the dead body of the deceased Umesh Yadav on the chauki. Deo Narain Yadav (P.W.2), Brajesh Kumar Yadav (P.W.3), Manoj Kumar Yadav (P.W.5) and Sanjay Yadav (P.W.6) had arrived there by that time indicating that the aforesaid witnesses had arrived at the place of occurrence preceding to arrival of Nanhe Yadav alias Naresh Prasad Yadav (P.W.1). But in quite contradiction to the aforesaid statement of P.W.1, P.W.2 has stated in para-7 of his cross-examination that Nanhe Yadav (P.W.1) did not disclose him as how long before his arrival he had arrived at the place of occurrence indicating that the P.W.1 had arrived at the place of occurrence preceding to P.W.2. Brajesh Kumar Yadav (P.W.3) in para-2 of his cross- examination has stated that at the time of occurrence he was sleeping at his house. He was awaken by his father (P.W.1). He also awoke Sanjay Yadav (P.W.6) and Manoj Kumar Yadav (P.W.5) disclosing that there is firing sound from the Bathan. Patna High Court CR. APP (DB) No.670 of 2012 dt.28-03-2019 His father (P.W.1) went to Bathan at first. He was followed by him. Thereafter, Sanjay Yadav (P.W.6), Manoj Kumar Yadav (P.W.5) and other villagers rushed there. Manoj Kumar Yadav (P.W.5) has stated in para-2 of his cross-examination that Brajesh Kumar Yadav (P.W.3), Sanjay Yadav (P.W.6), Bisheshwar Yadav (P.W.4), Nanhe Yadav alias Naresh Prasad Yadav (P.W.1) and Deo Narain Yadav (P.W.2) had arrived at the place of occurrence following him. They had arrived there one minute later to his arrival. As per the prosecution case and the statement of the informant the aforesaid witnesses spotted all the three accused persons escaping from the place of occurrence. But in quite contradiction to the statement of the informant and the prosecution case, Bisheshwar Yadav (P.W.4) has stated in para-1 of his examination-in-chief that he had witnessed in the torch light only Yogi Yadav and Rupesh Yadav alias Bihru Yadav escaping from the place of occurrence. Likewise Manoj Kumar Yadav (P.W.5) has stated in para-1 of his examination-in-chief that he had witnessed only two accused persons escaping towards north in the torch light but he did not identify them. Sanjay Yadav (P.W.6) has stated in para-1 of his examination-in-chief that he witnessed only two accused persons, namely, Yogi Yadav and Rupesh Yadav alias Bihru Patna High Court CR. APP (DB) No.670 of 2012 dt.28-03-2019 Yadav escaping from the place of occurrence in the torch light.

15. Deo Narain Yadav (P.W.2) in para-4 of his examination-in-chief and Manoj Kumar Yadav (P.W.5) in para-1 of his cross-examination have stated that they had listened the firing sound & the sound of screaming amid the sound of horn of the train & of passing train at 20 hands from the house. Then they took the torch and proceeded to the Basa of Umesh Yadav where the Sumitra Devi (informant) was wailing and Umesh Yadav was lying on chauki. But it is not possible to listen the sound of firing and screaming amid ear defining sound of horn of the passing train and of the train at the distance of 20 hands while as per prosecution case said witnesses had arrived at the place of occurrence after hearing the sound of firing and screaming and they had seen the accused persons escaping from the place of occurrence. The aforesaid aspect of the case creates serious doubt about arrival of the aforesaid witnesses at the place of occurrence. In the aforesaid facts and circumstances of the case, we find and hold that the aforesaid witnesses have not witnessed the appellants escaping from the place of occurrence at the time of occurrence.

17. From perusal of the testimony of the informant Sumitra Devi (P.W.8), it appears that though she has made an abortive bid to support the prosecution case by stating in her examination-in-chief in consonance to the prosecution case as adumbrated in the fardbeyan that at the time of occurrence she was sleeping in her Basa on the chauki along with her husband Umesh Yadav. She woke up on the sound of train and spotted Yogi Yadav, Rupesh Yadav and Chhotan Yadav standing near the chauki. When she wanted to ask them about the reasons of standing, in the meantime Yogi Yadav shot at the head of his husband Umesh Yadav. It was moonlit night. When she tried to apprehend them the accused fled away shoving her. Sustaining injury her husband died instantly. Deo Narain Yadav (P.W.2), Nanhe Yadav alias Naresh Prasad Yadav (P.W.1) and Sanjay Patna High Court CR. APP (DB) No.670 of 2012 dt.28-03-2019 Yadav (P.W.6) and others arrived there responding hulla made by her. She divulged the occurrence to them. But from perusal of statement of the informant made in para-8 of her cross- examination, it appears that she had fallen senseless following the death of her husband and had regained the sense after 10 days. After regaining sense by her, police had not recorded her statement, albeit fardbeyan of the informant Sumitra Devi (P.W.8), was recorded on 05.12.2009 i.e. on the very date of the occurrence which creates serious doubt about the prosecution case and the fardbeyan. As million dollar question arises as how the fardbeyan of the informant was recorded on the date of occurrence while she was senseless at that time and she regained sense after ten days and she has candidly denied to have given the statement to the police. Moreover, informant Sumitra Devi (P.W.8) in paras-4 & 5 of her cross-examination has stated that her devar Manoj Yadav had given statement regarding the occurrence to the police, while P.W.2 in para-7 of his cross- examination has stated that Mantu (Sanjay Yadav) had taken the administration at the P.O. within one hour. Mantu had given statement at the P.S. and I.O. (P.W.10) in para-2 of his cross- examination has stated that son of deceased, namely, Mantu had given information of the occurrence to the police and his Patna High Court CR. APP (DB) No.670 of 2012 dt.28-03-2019 statement was recorded by the police and Sanjay Yadav (P.W.6) has stated in para-9 of his cross-examination that his statement was recorded by the police on 04.09.2009 at 12:30 to 1 PM in the night and thereafter his statement was recorded on 05.09.2012 at 6 AM while P.W.3-Brajesh Kumar Yadav has stated in para-2 of his cross-examination that he had divulged the occurrence to the police at P.S. at first and he had put his signature on his statement. Aforesaid stands of said witnesses indicates that the statement of the said witnesses were recorded earlier to the informant and the statement of the aforesaid three witnesses, namely, Manoj Kumar Yadav (P.W.5), Mantu Yadav @ Sanjay Yadav (P.W.6) and Brajesh Kumar Yadav (P.W.2) must be the first informant report which they had given to the police prior to the informant but the aforesaid statement of the said witnesses, which happens to be first information report, has not been brought on record by the prosecution rather concealed, which creates serious doubt about the prosecution case. More so, number of witnesses have stated that it was the Pinku Yadav who had given the information to the police on phone in the night of the occurrence and on the said information police had arrived at the place of occurrence within short while but the aforesaid Pinku Yadav has also not been examined by the Patna High Court CR. APP (DB) No.670 of 2012 dt.28-03-2019 prosecution and no plausible reason has been assigned by the prosecution for non-examination of the said material witness of the case which also creates serious doubt about the prosecution case.