Subhas Yadav And Anr. Vs State

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal No. 53 of 1997 (DB)

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( Against the judgment of conviction dated 30^th January, 1997 and order of sentence dated 31^st January, 1997, passed by learned Sessions Judge, Godda in Sessions Trial No.80 of 1994 )

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1.Subhas Yadav son of Neelkanth Hazari @ Neelkanth Yadav, resident of Village-Pandubathan, P.S. Godda (T), District-Godda.

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2.Naresh Yadav son of Bhotri Yadav, Resident of village Sarotia, P.S. Godda (M), District Godda

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…. Appellants

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Versus

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The State of Bihar ….. Opp. Party

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P R E S E N T

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HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE RAJESH KUMAR

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For the Appellants : Mrs. Vani Kumari, Advocate For the State : Mrs. Priya Shrestha, Spl. P.P.

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C.A.V. on 11/07/2025 Pronounced on 01/08/2025

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Per Sujit Narayan Prasad, J.:

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Prayer:

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1. The instant appeal has been filed under Section 374 (2) of the Code of Criminal Procedure against judgment of conviction dated 30^th January, 1997 and order of sentence dated 31^st January, 1997, passed by learned Sessions Judge, Godda in Sessions Trial No. 80 of 1994, by which the appellants have been convicted under section 302/34 of IPC and sentenced to undergo rigorous imprisonment for life.

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Prosecution Case:

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2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case.

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3. As per ferdbeyan of the informant, Nepal Mandal(P.W-2), recorded on 27.03.1993 at 11 a.m by the S.I. Subodh Kumar Jaiswal of Godda (T) P.S, at Sadar Hospital, Godda, that at about quarter to 11 A.M. on the same day, he was standing nearby a Pipal tree at Godda Private Bus Stand in Mala Maidan. In the meantime, a passenger bus namely, ‘Patliputra’ arrived there from Deoghar from which informant’s elder brother, namely, Gopal Mandal (now deceased) got down. Allegedly, 16 accused persons, namely, Mrinal Yadav, Naresh Yadav, Jitendra Yadav, Mritunjai Yadav, Jeevan Yadav, Jyotish Yadav, Gudu Yadav, Subhash Yadav, Jaikant Raut, Arun Singh, Janardhan Rout @ Guddu, Ramdeo Yadav, Guddu Yadav, Dilip Yadav, Ragho @ Raghav Singh and Mahesh Yadav encircled the informant’s brother. Then, the accused Mrinal Yadav asked to assault. Thereupon, the accused Naresh Yadav started slapping the informant's brother. Then, the informant together with Bishnu Yadav, Babul Khan and 10 to 15 other persons went there and removed the accused persons. Accused 2

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persons left Mela Maidan and went into a tea-stall nearby the betal shop of one Shambhu Pandit, situated by the side of the road, abusing that the deceased should be killed. Thereafter, the informant stated, on his suggestion his brother (the deceased) proceeded for his home and the informant also followed him. But, as soon as the deceased arrived nearby the tea-stall of one Tarzan, all the above said accused persons suddenly came out of the tea shop and, again surrounded the deceased. Allegedly, the accused Naresh Yadav, Mrinal Yadav and Subhash Yadav caught hold of the deceased while at the orders of the accused Mrinal Yadav, the accused Raghav Singh took out a pistol from waist and shot at over the right chest of the deceased and pushed him down as a result of which the deceased, having sustained injury, fell down there and the assailants brandishing pistol fled away towards north.

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4. Informant further stated that as a result of this incident a panic was created and the people started running away hither and thither due to fear. Thereafter, Bishnu Yadav, Babul Khan, Aslam and others chased the miscreants and raised alarm but, due to fear, none arrived there. However, after sometime the informant together with Bishnu Yadav, Babul Khan, Aslam and Md. Mustaque

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brought the deceased to hospital by rickshaw but by that time the deceased died.

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5. Informant further stated that the deceased was an agent at Godda Bus stand while the accused Mrinal Yadav and others were also working as agents at the same Bus stand and due to professional rivalry owing to booking of the buses there had been an altercation between them 2- 3 days earlier to the occurrence and, as such, the accused persons in-league with each other killed the deceased.

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6. On the basis of the informant's ferdbeyan a case under Section 302/34 I.P.C together with 27 Arms Act was registered in Godda (T) P.S on 27.3.93 bearing no. 70/93. After investigation the police charge-sheeted 17 accused persons recommending their trial for alleged commission of the offences punishable under Sections 302 and 120B read with section-34 I.P.C and also u/s-27 Arms Act and cognizance of the offences were taken which being exclusively triable by court of Sessions, the case was committed to the Court of Sessions. Charges were framed against accused persons including the appellants and accordingly the trial commenced.

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7. The accused persons, in general, have pleaded their innocence as well their false implication in this case. Apart from that specific defence version is that the

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deceased had forcibly kept a Tribal lady as his kept, therefore, the husband and other kin of that lady killed the deceased, but, due to professional rivalry, the accused persons were falsely implicated in this case. Besides a specific defence case is put forward on behalf of the accused Mrinal Yadav that he had undergone surgical operation of his hydrocels and, as such, his movements were restricted by the Doctor, therefore, he was not present at the place of occurrence. In support of defence version, two defence witnesses have been examined and also documents under Ext. A and B series have been produced to substantiate the defence stand.

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8. The prosecution has examined altogether fifteen witnesses out of whom PW-2 Nepal Mandal is the brother of the deceased and informant of the case; PW-1 is Manoj Kumar Rai, PW-3 is Sunil Mandal and PW-4 is Md. Mustaque. PW-1, PW-2 and PW-3 are clerks in the bus stand. PW-6 is Dr. Pradeep Kumar Sinha, who had conducted post-mortem examination of the deceased Gopal Mandal; PW-7 is Babul Khan, stand clerk; PW-8 is Md. Aslam; PW-9 is Ganesh Mandal who is contractor; PW-11 Ashok Thakur, is hostile witness; PW-12 Subodh Kumar Jaiswal, is the Investigating officer of the case. PW-5 Sambhu Pandit, PW-10 Santosh Kumar Bhagat, PW-13 Pran Sen, PW-14 Bulbul Mishra, PW-15 Surendra

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Pd. Sah and all PW-5, PW-10, PW-13, PW-14 and PW-15 are tendered witnesses.

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9. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons and found the charges levelled against the appellants under Section 302/34 proved beyond all reasonable doubts. Accordingly, the appellants have been found guilty and convicted, as stated above, which is the subject matter of instant appeal.

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Submission on behalf of appellants :

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10. Mrs. Vani Kumari, learned counsel appearing for the surviving appellants has assailed the impugned judgment of conviction and order of sentence on the following grounds:

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I. Prosecution has miserably failed in proving the charge leveled against the appellants and learned trial court has committed error of law in evaluating and analyzing the evidence in coming to the conclusion.

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II. Submission has been made though the incidence occurred in broad day light but no independent witness has been examined rather the interested witnesses, specially the P.Ws 1 to 4 and 7 to 9, have been examined who made a concocted story

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in league with police so that they may be able to get time to earn money by booking Private buses excluding the accused persons.

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III. Submission has been made as per the statements of prosecution witnesses to whom the prosecution, either tendered or declared hostile, that the deceased had kept a Tribal lady, namely, Shanti Devi as his kept and for this he had incurred displeasure to the husband of the said lady. Even the informant in his crossexamination at para-34 had admitted that his brother, the deceased, used to visit the house of one Shanti Devi, a Tribal lady of Ranchi who was residing at village Hariyali (within Poraiyahat P.S of district-Godda). It is also his admission that the said Shanti Devi was not related to the deceased, still, the deceased used to go to her house.

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IV. Referring to the testimonies of P.W-11 Ashok Thakur, a resident of village Hariyari, P.SPoraiyahat, Distt-Godda, submission has been made that according to him in the month of March three boys of Ranchi had gone to his village and they were quarrelling with the deceased Gopal Mandal for the reason that the

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deceased had brought a Tribal lady and he was not willing to relieve her. It was also stated that on the fateful day these three tribal boys had followed the deceased Gopal Mandal up-to Godda by Motor cycle and later on he (P.W-11) came to know that these three boys had killed the deceased. Though the said P.W. 11 has been declared hostile but from his cross-examination done on behalf of the prosecution there appears nothing to discard his testimony.

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V. Apart from that the most material witness Sambhu Pandit (P.W-5), a tea Vender; Pran Sen (P.W-13) and Surendra Pd. Sah (P.W-15) have been tendered. Submission has been made that as per P.W-5 nothing had happened near about his shop. Further, P.W-13 did not identify any of the accused persons as the assailants and has deposed in Court that when there was alarm he saw a motor cycle, having no registration number, three black coloured persons were running away. Similar evidence is given by P.W15 also. Therefore, submission has been made that the deceased might have been killed by unknown Tribal for the reason that the deceased

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had kidnapped a Tribal lady and he was not ready to relieve her from his clutches.

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VI. Apart from this, it is stated that one of the accused persons, namely, Mrinal Yadav, had gone surgical operations of his hydrocele on 13.03.1993 at Sadar Hospital, Godda and he was advised rest by the Doctor who did surgical operation. The said Doctor Ajoy Kumar Jha has proved his certificate Ext. A. This gives ground to believe that the accused Mrinal Yadav was not in a position to do any overtact as alleged and, again, it seems probable that the accused Mrinal Yadav might have been falsely implicated in this case due to business rivalry.

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VII. Therefore, submission has been made that the appellants have falsely been implicated in this case due to professional rivalry as both the appellants and the deceased were in the same profession as Bus Agent at Bus stand.

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VIII. Therefore, specific defence has been taken that since the deceased had, forcibly, kept a Tribal lady as his kept, therefore, the husband and other kin of that lady killed the deceased.

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IX. Further submission has been made that many of the witnesses are even of criminal background,

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which facts comes in their cross-examination. P.W-4 in cross-examination has deposed that he was figured as accused u/s-307 I.P.C and 27 Arms Act and also in a case of rape. Likewise, P.W-7 has also been figured as an accused in a case u/s-307 I.P.C.

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X. Besides, there is variation in the statements of witnesses viz., P.W-7 named altogether 14 accused persons while P.W-8 could name only 11 accused persons who allegedly encircled the deceased.

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XI. Further submission has been made that even main allegation is upon the convict, Raghav Singh who allegedly took out a pistol from his waist and shot at the right chest of the deceased but alleged pistol has not been recovered and the learned trial court did not appreciate this fact and even no conviction has been made under Section 27 of the Arms Act.

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XII. Further, the investigation in the case at hand has been done in a haphazardly manner as also the trial, and there are many discrepancies and inconsistency in the testimony of the witnesses in particular the testimony which is fatal to the prosecution case.

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XIII. Submission has been made that defence witness, D.W-2 Kapildeo Yadav, who was also a bus stand clerk, has placed one letter written by the informant, wherefrom it is evident that the informant Nepal Mandal, later on repented that he falsely implicated the accused Raghav Singh and for that he was feeling guilty. The said letter has been marked as which is Ext.B.

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XIV. But the learned trial Court has disbelieved version of both the defence witnesses i.e., disbelieving the version of doctor [D.W. 1-Ajoy Kumar Jha] has recorded the finding that it very is difficult to believe that the accused Mrinal Yadav, due to his operation of hydrocele, was not in a position to move or remain present at the place of occurrence and commit the crime as alleged and further the informant, the so called writer of Ext. B, since was not confronted with the said piece of paper, therefore, Ext.B which has been proved by a formal witness cannot be safely relied upon. But coming to such finding no cogent reason has been assigned by learned trial court.

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XV. Further the ground of delay in forwarding the

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F.I.R to Court has been taken and submission

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has been made that it gives a reason to doubt that during the period of delay the F.I.R might have been manufactured to suit the prosecution. The alleged occurrence took place on 27.03.1993 and the same day, immediately, the Ferd Beyan of the informant was recorded and the formal F.I.R was drawn at 1.00 P.M but the same appears to have been sent to Court on 29.03.1993 which is evident from the formal F.I.R Ext.4 which has been noted and seen by the I/C Chief Judicial Magistrate, Godda on 29.03.1993. The cause of such delay has not been explained by the prosecution. But this fact has also not been appreciated by learned trial court, rather, the learned trial court has made a finding that this alone cannot be a reasonable ground to discard the entire case of prosecution when the evidences are consistent and reliable on record.

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XVI. Further submission has been made that the I.O. (P.W. 12) did not send the blood stained earth for chemical examination nor he prepared the map of the place of occurrence.

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11. Learned counsel for the appellants, in the backdrop of aforesaid grounds, has submitted that the judgment of 12

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conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt.

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Submission of the learned APP for the State:

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12. P er Contra , learned Special Public Prosecutor appearing on behalf of State has defended the impugned judgment of conviction and order of sentence taking the ground that the impugned judgment has been passed based upon the testimony of witnesses who have supported the prosecution version.

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13. Submission has been made that taking into consideration the statements of the informant together with the so called eye witnesses P.Ws-4, 7, 8 and 9, it is evident that they have consistent in their statement that at quarter to 11 A.M the deceased together with his two companions got down from a Bus at Mela Maidan, Godda which is stand for Private Bus and, then, a number of accused persons surrounded him while the accused Naresh Yadav slapped the deceased and, subsequently, the accused Naresh Yadav, Subhash Yadav and Mrinal Yadav caught hold of the deceased and, then, at the orders of Mrinal Yadav it was the accused Raghav Singh who fired upon the chest of the deceased causing his immediate death. The medical evidence and the 13

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Investigating officer also supports the prosecution version.

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14. Further submission has been made that even if there are minor discrepancies in the testimonies of the witnesses that cannot wash away the case of the prosecution.

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15. Learned State counsel, based upon the aforesaid ground, has submitted that the prosecution has been able to prove the guilt of the appellants beyond all reasonable doubt and as such the impugned judgment requires no interference by this Court.

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Analysis

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16. We have heard learned counsel for the parties, perused the documents available on record and the testimony of witnesses as also the finding recorded by learned trial Court in the impugned order.

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17. This Court, on the basis of aforesaid factual aspect vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of impugned judgment of conviction and order of sentence.

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18. The prosecution has brought and examined altogether fifteen witnesses out of which, one witnesses has been turned Hostile; five witnesses have been declared tendered. Two witnesses have been examined on behalf of defence.

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19. P.W. 11- Ashok Thakur has been turned hostile. P.W5 Sambhu Pandit, P.W-13 Pran Sen, betel shop keepers at bus stand, P.W-10 Santosh Kumar Bhagat, P.W-14 Bulbul Mishra, the owner of the Patliputra bus and P.W. 15- Surendra Pd. Sah, have been tendered.

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20. Apart from, P.W-1 Manoj Kumar Rai and P.W-3 Sunil Mandal, both stand clerks are hearsay persons while, the informant-Nepal Mandal (P.W-2), Md. Mustaque (P.W-4), Babul Khan (P.W-7), Md.Aslam (P.W-8), all stand clerks and Ganesh Mandal (P.W-9), a contractor have given eye witness account to the alleged occurrence.

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21. This Court, in order to appreciate the argument advanced by learned counsel for the parties, deems it fit and proper to first deals with the testimony of informant.

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22. P.W-2 Nepal Mandal , the informant, admittedly is the younger brother of the deceased Gopal Mandal. He reiterated the story of the prosecution case as depicted by him at the first instance while ferdbeyan was recorded by police at hospital.

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23. According to P.W-2 it was quarter to 11 O'clock in the day on 27.03.1993 while he was standing nearby a Pipal tree in the Mela maidan. In the meantime, a private bus, namely, ‘Patliputra’ arrived there and his elder brother, the deceased Gopal Mandal got down there together with Surendra Bhagat and Ganesh Bhagat. He has further

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deposed that accused Mrinal Yadav, Naresh Yadav, Subhash Yadav, Jeewan Yadav, Jyotish Yadav and Jitendra Yadav went near the deceased and started slapping him. The informant (P.W-2) raising alarm rushed there together with Babul Khan, Bishnu Yadav and 10-12 unknown persons and separated the accused persons and then the accused Mrinal Yadav together with his companions went into the tea-stall of one Ramjee Pandit situated towards west of the Mela gate. He further deposed that he suggested his brother, the deceased, to go home and, as such, the deceased proceeded for his home accompanied by the said Surendra Bhagat and Ganesh Bhagat, but the accused Mrinal Yadav, Naresh Yadav, Subhash Yadav, Jitendra Yadav, Jyotish Yadav, Jeewan Yadav, Guddu Yadav, Mahesh Yadav, Ramdeo Yadav, Jaikant Rout, Janardhan Rout, Gudu Yadav and Arun Singh came out of the tea shop and exhorted to kill the deceased and ran after him and the accused Naresh Yadav, Subhash Yadav and Mrinal Yadav caught hold of the deceased. PW-2 further deposed that at the orders of the accused Mrinal Yadav the accused Raghav Singh took out a pistol from his waist and shot at the deceased and also pushed him down and fled away. Informant started crying over which Babul Khan, Bishnu Yadav, Md.Aslam, Md. Mustaque

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chased the accused persons but the accused persons fled away. Thereafter, they took the deceased to hospital but on the way he died and on reaching hospital he was declared dead by the Doctor. The police arrived in the hospital where his ferdbeyan was recorded by the daroga Jaiswal and having found the same to be correct he put his signature thereon. The ferdbeyan was marked as Ext.1 on record.

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24. In his cross-examination P.W-2 stated that while his brother, the deceased, was going his home through the main road Godda, he (P.W-2) was also following him, but, in the meantime, the accused persons surrounded the deceased keeping him (P.W-2) out of circle and then the accused Raghav Singh shot at the deceased who fell down over the western side of the road. P.W-2 in his cross-examination at para-34 stated that his deceased brother used to visit the house of one Shanti Devi, a Tribal lady of Ranchi who was residing at village Hariyali (within Poraiyahat P.S of district-Godda). Shanti Devi was not related to the deceased, still, the deceased used to go to her house. But, P.W-2 denied the defence suggestion that the husband of Shanti Devi and his companions have killed the deceased and the informant has falsely implicated his rivals at the bus stand.

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25. The prosecution has brought and examined four more persons as eye witnesses to the alleged occurrence, therefore, it is required to examine as to how far these so called eye witnesses have corroborated the prosecution story.

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26. P.W-4 Md. Mustaque , a stand clerk, stated that on the date and time of the alleged occurrence he was booking the Bus at the stand. In the meantime, the deceased Gopal Mandal together with Ganesh Bhagat and Shailendra Bhagat got down from Patliputra Bus to whom the accused Naresh Yadav, Subhash Yadav and Mrinal Yadav started slapping the Gopal Mandal, while group members of the accused Mrinal Yadav had surrounded the deceased. Then, P.W-4 together with Babul Khan (P.W-7), Nepal Mandal (the informant P.W2), Bishnu Yadav (not examined) and Aslam Parwez (P.W8) pacified the alleged altercation upon which Gopal Mandal, the deceased, went into a tea stall of Sambhu Pandit while the accused Mrinal Yadav, Naresh Yadav, Subhash Yadav and Raghav Singh moved to the Tarzan's tea-stall. P.W-4 further stated that, thereafter, the accused Mrinal Yadav, Subhash Yadav and Naresh Yadav caught hold of Gopal Mandal, the deceased, and, thereafter, at the orders of the accused Mrinal Yadav, the accused Raghav Singh took out a pistol from his waist

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and shot at the deceased. P.W-4 further stated that on this occurrence he together with his companions, raised alarm and rushed towards the accused persons where accused were running away having seen the pistol in their hands. They returned back and found that the deceased was lying in front of Tarzan's tea-stall wherefrom he, together with the informant and others, took the deceased to hospital where he was declared dead by the Doctor. This witness also identified the accused persons present in dock.

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27. P.W-4 in his cross-examination stated that all the accused persons encircled Gopal but only three of them had caught hold of the deceased and while Gopal Mandal, the deceased, was encircled P.W-4 raised alarm and he was at that time at a distance of about 5 hands therefrom. Aslam and others rushed there after hearing the sound of firing; but, by that time the accused persons had fled away and he together with 4 to 5 persons chased them. In cross-examination, P.W-4 has stated he was figured as accused u/s-307 I.P.C and 27 Arms Act and also in a case of rape.

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28. The other two witnesses namely, P.W-7 Babul Khan and P.W-8 Md. Aslam, are also Stand clerks and both are so called eye witnesses to have deposed in the same fashion stating that at the relevant time of the

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occurrence they were present at the bus stand. Both P.W-7 and P.W-8 have deposed that on the day of occurrence accused persons had encircled the deceased Gopal Mandal and accused Naresh Yadav was assaulting the deceased. Then they along with 8-10 persons separated them. Nepal Mandal told Gopal to go home and when Gopal reached the tea shop of Tarzan, there accused persons Mrinal Yadav, Subhash Yadav and Naresh Yadav caught hold Gopal and at the order of accused Mrinal Yadav, accused Raghav Singh took out a pistol from his waist and shot at Gopal Mandal on his chest. They chased the accused persons but the accused persons fled away. P.W-7 and P.W-8 further deposed that they took Gopal to the hospital where the Gopal was declared dead. In cross-examination, P.W. 7 stated that that he has figured as an accused in a case under Section 307 I.P.C.

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29. P.W-9 Ganesh Mandal has also deposed in the style of an eye witness to the alleged occurrence. He stated that at the relevant time he was standing in front of the main gate of the Mela Maidan where he had gone to see Babul Khan (P.W-7). He further stated that the deceased Gopal Mandal got down there from Patliputra bus together with Shailendra Bhagat and Ganesh Bhagat. When the deceased stepped ahead the accused Mrinal Yadav and

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others went there while the accused Naresh Yadav catching hold of the deceased started slapping him. P.W9 further stated that an alarm was raised and the witnesses rushed towards the place of occurrence but the accused persons fled towards north brandishing pistol in their hands as a result of which the witnesses could not be apprehend.

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30. P.W-9 has further deposed that from the place of occurrence three cartridges together with a leather bag and sandles were seized for which a seizure list Ext.3 was prepared and he put his signature on it. Blood stained earth was seized by police over which he put his signature Ext.3/A.

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31. In his cross-examination at para-28 and 29, P.W-9 has stated that he had put his signature over the ferdbeyan of the informant at the hospital while he had put the signature over the seizure list at the place of occurrence.

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32. P.M-6 Dr. Pradeep Kumar Sinha , Medical Officer at Sadar hospital, Godda, deposed that on 27.03.1993 he performed post mortem examination on the dead body of the deceased Gopal Mandal and found that there was one wound of entry 1/4"x1/4" round in shape having inverted margin and with the seinging of hairs in the epigastrum 1X1/2" below the xiphtoid process of the 21

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externum directed downwards and backwards towards right side of the back of abdomen. There was another wound and that the wound was of exit 1/2"x1/4" oval in shape having inverted margin over back of the abdomen (right side of 3" away from lumber one vertebra). So, according to the Doctor only two wounds, one of entry and the other exit were found over the dead body off the deceased.

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33. On dissection the Doctor found that the stomach was having lacerated wound near lesser curveture 2"x1/2" into whole thickness through and through besides, the liver and right kidney were also lacerated.

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34. Doctor opined that the injuries were caused by fire arms resulting into the death of the deceased. The post mortem report was marked as Ext.2. In his crossexamination the Doctor stated that he did not find any mark of scroaching or tattooing. Doctor stated that the fire was shot at from above and cartridges went downwards and also firing was done from a short distance.

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35. P.W-12 Subodh Kumar Jaiswal is the Investigating Officer of the case . He has deposed that having seen the people running from Godda bus stand he could guess that some untowards might have had taken, He made a Sanha entry no.553 dated 27.3.93 and, immediately,

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with police force proceeded for the bus stand and therefrom he went to Sadar hospital where he recorded the ferdbeyan Ext.1 of the informant and then drew formal F.I.R Ext.4. Investigating Officer further stated that inquest report of the dead body was prepared at the hospital in presence of the witnesses and the same is Ext.5. The Investigating Officer has further stated that while he was preparing inquest report of the dead body, he recovered and seized three cartidges from the pocket of the deceased for which he prepared a seizure list Ext.3 and thereafter, he proceeded for the place of occurrence which is Private bus stand, Godda and there he seized a leather sandal as well blood stained earth for which, prepared a seizure list. The seized leather sandal was produced in court as Material Ext.I, the seized cartidges and blood stained earth were also produced in Court and the same were marked as Material Exts. II & III, respectively.

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36. On the part of defence, two witnesses have been examined, who are D.W 1-Dr. Ajay Kumar Jha and D.W2 Kapildeo Yadav

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37. D.W 1-Dr. Ajoy Kumar Jha , has stated that the Mrinal Yadav @ Mrinal Kant Hazari had gone surgical operations of his hydrocele on 13.03.1993 at Sadar Hospital, Godda and he was advised rest. The said

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Doctor Ajay Kumar Jha has proved certificate Ext. A regarding treatment of Mrinal Kant Hazari.

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38. D.W-2 Kapildeo Yadav , is a bus stand clerk, who has produced a letter purported to have been written by the informant Nepal Mandal, which is Ext.B , which goes to show that the informant later on repented that he falsely implicated the accused Raghav Singh and for that he was feeling guilty.

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39. The undisputed fact is that the deceased Gopal Mandal was killed in broad day light at 10.45 A.M on 27.03.1993 near Private Bus Stand at Godda. It is also admitted fact that the deceased was shot at his chest by fire arm as a result of which he died soon thereafter.

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40. The prosecution has led evidences to establish that the alleged murder was witnessed by several people and, the said murder, according to prosecution, took place due to business rivalry between two groups of Bus Stand Clerks in booking the passengers into the Private buses.

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41. While the appellants, in their defence, have taken the ground that the interested persons concocted the story of murder in league with police due to rivalries among the Stand clerks at the Private bus stand. Apart from this, efforts have been made by the defence to show that the deceased himself, was a man of questionable character and he had kept a married Tribal lady as his kept and for

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that reason the husband or kin of the said lady killed the deceased.

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42. Besides that the appellants have taken the ground that although the incidence occurred in broad day light but no independent witness has been examined rather the witnesses who have alleged to be the eye witnesses are the interested witnesses and even in their statement there are many discrepancies. Besides the tendered witnesses, who have been examined, have rather in unequivocal term has denied to have such incidence or deposed that they did not see the appellants involved in commission of crime.

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43. Thus, the appellants have tried to question the bona fide of the prosecution case as well made efforts to show that the version of the defence is more probable.

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44. In the backdrop of these facts and pleadings available

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on record this Court has to appreciate the other materials available on record and the see the credibility of the testimony of the witnesses in order to see whether the case of the prosecution has been proved beyond all reasonable doubt or not.

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45. The Hon’ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, therefore, this

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Court has to see whether this case falls under the law, as propounded by Hon’ble Apex Court, in the case of Rang

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Bahadur Singh & Ors. Vrs. State of U.P., [ (2000) 3 SCC 454] or not, wherein it has been held that a criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. For ready reference, paragraph-22 of the judgment is quoted as under:-

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“ 22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time, we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime.”

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46. Likewise, the Hon’ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka

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(Supra) has held at paragraph-26 as under: -

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“ 26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond

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reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction.

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The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt. ”

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47. This Court in order to come to such conclusion has again gone into the factual aspect as also the testimonies of the witnesses.

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48. Admittedly, the incidence occurred in broad day light but no independent witness has been examined rather the interested persons, specially the P.Ws 1 to 4 and 7 to 9, have been examined and the most material witness Sambhu Pandit, a betel shopkeeper (P.W-5) near whose shop it is alleged that the incidence occurred, Pran Sen (P.W-13) and Surendra Pd. Sah, a hotel shop owner (P.W15) have been tendered.

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49. As per the testimony of P.W-5 nothing had happened near about his shop. Further, P.W-13 did not identify any of the accused persons in the dock. Likewise, P.W-15 has also deposed that he did not see any person killing. Here, it is pertinent to note that all these tendered witnesses P.W-5, P.W-13 and P.W-15 have shop near the place of occurrence, but, all these witnesses denied to have identified any of the accused persons as assailants.

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50. Further, it comes from the testimony of P.W-11 Ashok Thakur, who was declared hostile, that the deceased had kept a Tribal lady, namely, Shanti Devi as his kept and for this he had incurred displeasure to the husband of the said lady. Even the informant in his crossexamination at para-34 had admitted that his brother, the deceased, used to visit the house of one Shanti Devi, a Tribal lady of Ranchi. P.W-11 Ashok Thakur, has deposed that in the month of March three boys of Ranchi had gone to his village and they were quarrelling with the deceased Gopal Mandal for the reason that the deceased had brought a Tribal lady and he was not willing to relieve her. It was also stated that on the fateful day these three boys had followed the deceased Gopal Mandal up-to Godda by Motor cycle and later on P.W-11 came to know that these three boys had killed the deceased. Though the said P.W. 11 has been declared hostile but from his cross-examination done on behalf of the prosecution there appears nothing to discard his testimony.

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51. Though, the prosecution has laid argument that the deposition of hostile witness cannot be taken into consideration to give the benefit of the appellant, but position of law is well settled that the deposition of hostile witness cannot be said to be in discard of the

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testimony of the eye witness, as has been held by Hon’ble Apex Court in the judgment rendered in the case of

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Govindaraju v. State, (2012) 4 SCC 722, wherein it has been held as under:

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“36 .It is also not always necessary that wherever the witness turned hostile, the prosecution case must fail. Firstly, the part of the statement of such hostile witnesses that supports the case of the prosecution can always be taken into consideration. Secondly, where the sole witness is an eyewitness who can give a graphic account of the events which he had witnessed, with some precision cogently and if such a statement is corroborated by other evidence, documentary or otherwise, then such statement in face of the hostile witness can still be a ground for holding the accused guilty of the crime that was committed. The court has to act with greater caution and accept such evidence with greater degree of care in order to ensure that justice alone is done. The evidence so considered should unequivocally point towards the guilt of the accused.”

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52. Therefore, the stand of the prosecution that the testimony of the hostile witnesses cannot be taken into consideration has no leg to stand.

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53. This Court has found that there are certain variations/discrepancies in the testimonies, as pointed out by the learned counsel for the appellants, but whether they are enough to come to the conclusion that the prosecution has failed to prove the case beyond all reasonable doubt or not and it affect the case of the

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prosecution substantially, this Court has to go to other grounds, as taken by learned counsel for the parties.

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54. As per testimony available on record, it is evident that many of the witnesses, on whose testimony the judgment of conviction and order of sentence is based, are even of criminal background, which facts comes in even in their cross-examination. P.W-4 in his testimony has deposed that he has figured as accused u/s-307 I.P.C and 25 Arms Act and also in a case of rape. P.W-7 has also been figured as an accused in a case u/s-307 I.P.C. It is settled position of law on this ground alone the version of such witnesses cannot be disbelieved. But, it is also equally the settled position of law that the judgment of conviction and order of sentence is not to be passed on such ground rather for coming to a logical conclusion of proving the charge the evidence in entirety is to be seen by the trial court and if other grounds are available in favour of defence then certainly it will be of help to the case of defence.

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55. Apart from that, it is stated that one of the accused persons, namely, Mrinal Yadav had gone surgical operations of his hydrocele on 13.03.1993 at Sadar Hospital, Godda and he was advised rest by the DoctorAjay Kumar Jha, who did his surgical operation. The said Doctor Ajay Kumar Jha was examined by the defence as

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D.W-1and doctor has proved the treatment certificate issued by him which is Ext. A. To the court question D.W-1 Doctor Ajay Kumar Jha has deposed that stitch is cut on the eighth day of the operation and even after cutting the stitch the wound is alive. This gives ground to believe that the accused Mrinal Yadav was not in a position to do any overtact as alleged and, again, it seems probable that the accused Mrinal Yadav might have been falsely implicated in this case due to business rivalry. But the learned trial Court has disbelieved version of the defence witness D.W-1-Doctor Ajay Kumar Jha, and recorded the finding that it very difficult to believe that the accused Mrinal Yadav due to his operation of hydrocele was not in a position to move or remain present at the place of occurrence and commit the crime as alleged. Hence, the learned trial court has not given any cogent reason as to why the opinion of the doctor produced on behalf of defence be disbelieved.

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56. This gives ground to believe that the accused Mrinal Yadav was not in a position to do any overtact. But, the prosecution case is built on the foundation that Mrinal Yadav was one of the main accused who had caught hold of the deceased and then deceased was shot by accused Raghav Singh by pistol. Hence, the very foundation of prosecution case is weakened by the deposition of D.W-1

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Doctor Ajay Kumar Jha, who had performed operation of hydrocele of accused Mrinal Yadav and hence, he was not in a position to do any overtact.

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57. The ground of delay in forwarding the F.I.R to Court has been taken and submission has been made that it gives a reason to doubt that during the period of delay the F.I.R might have been manufactured to suit the prosecution. The alleged occurrence took place on 27.03.1993 and the same day, immediately, the Ferd Beyan of the informant was recorded and the formal F.I.R was drawn at 1.00 P.M but the same appears to have been sent to Court on 29.03.1993 which is evident from the formal F.I.R Ext.4 which has been noted and seen by the I/C Chief Judicial Magistrate, Godda on 29.03.1993. The cause of such delay has not been explained by the prosecution. But this fact has also been appreciated by learned trial court, rather the learned trial court has made a finding that this alone cannot be a reasonable ground to discard the entire case of prosecution when the evidences are consistent and reliable on record.

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58. It is true that the ground in delay in sending the FIR to the court is not sufficient to disbelieve the prosecution version but this laches along with others certainly diminish the case of the prosecution.

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59. Further ground has been taken that the I.O. (P.W.12) did not send the blood stained earth for chemical examination nor he prepared the map of the place of occurrence. In a case of murder, certainly these are essential to be done by the Investigating Officer and it goes to show that the investigation was not done in the proper manner.

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60. This Court, in the entirety of the facts and circumstances, is of the view that the prosecution failed to prove the charges beyond all reasonable doubt for the reasons and grounds, as discussed above.

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61. In consequence thereof, the instant appeal stands allowed.

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62. The appellants are acquitted of their criminal liability and discharged from the liability of their bail bonds.

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63. Pending Interlocutory Applications, if any, stand disposed of.

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I Agree (Sujit Narayan Prasad, J.)

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(Rajesh Kumar, J.) (Rajesh Kumar, J.)

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Jharkhand High Court, Ranchi