JUDGMENT
Vishnudeo Narayan, J.
1. This appeal has been preferred by the appellants named above against the judgment dated 27.8.1990 passed in S.T. No. 40/88 by Sri Paras Nath Sinha, 3rd Additional Sessions Judge, Giridih whereby and whereunder all the appellants were found guilty for the offence punishable under Section 302/34, IPC and they were convicted and each sentenced to undergo RI for life. However, the appellants were acquitted of the charges under Section 379/34, IPC.
2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of PW 4, Tulsi Mahto, the informant and the son of Khubi Mahto, the deceased of this case, recorded by ASI, Irsad Ali of Town PS Giridih in the Surgical Ward No. 3 of Sadar Hospital, Giridih on 15.10.1986 at 3.00 hours regarding the occurrence which is said to have taken place on 14.10.1986 at 18.00 hours only under a Banyan tree west of Mahadeo temple at Tetariatand in village Arkhango Tola Taraunia, PS Dhanwar, District Giridih.
3. The prosecution case, in brief, is that PW 4, the informant along with his father Khubi Mahto, the deceased of this case, left his village at about 5.00 O’clock in the evening on 14.10.1986 for boarding a bus at Ghorthamba bus stand for going to Biharsharif for the purchase of potato and his father was carrying Rs. 5,000/- in his pocket and they waited for a considerable time at the said bus stand and when they did not get a bus bound for Biharsharif, they were returning to their village.
It is alleged that at about 6.00 O’clock in he evening they reached near the Banyan tree west of Mahadeo temple at Tetariatand, and the appellants came there running armed with lathi and they had concealed themselves under the said Banyan tree and they started mounting attacks on his father Khubi Mahto, who fell down and they also removed Rs 5,000/- from his pocket. The prosecution case further is that Hari Dusadh, Prakash Dusadh, Satyariarayan Dusadh, Kuwar Dusadh, Ghuna Dusadh, Bihari Dusadh, Bhimlal Dusadh. Prayag Dusadh, Lalji Dusadh, Munshi Dusadh, Pitambar Dusadh, Babulal Dusadh, Lootan Dusadh, Baleshwar Dusadh, Brinda Dusadh and Deo Dusadh all residents of the village of the informant came from the arhar crop field and ran towards him to assault him and at this he fled away to the village. It is further alleged that after sometime he came to the place of occurrence in the company of his mother, sister and brother and the appellants and the aforesaid other persons had fled away from there by that time and he found his father fallen on the ground unconscious and he brought his injured unconscious father on a cot to his house with the help of his sister and brother. It is also alleged that thereafter his injured father was brought to the Giridih Sadar Hospital on Trekker but he was declared dead there. The prosecution case further is that the appellants aforesaid are criminals and they have the habit of committing robbery and there had been an altercation between him and the appellants regarding grazing of the cattle a month prior to the occurrence and due to this they have committed the offence.
4. The appellants have pleaded not guilty to the charges levelled against them and they claimed themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case out of enmity which is existing and alive between the parties and appellant Sakti Dusadh had filed a complaint case bearing No. 2/86 before the sarpanch of Arkhango Gram Panchayat on 19.6.1986 against PW 4. the informant and his father Khubi Mahto, the deceased of this case, and several other persons and thereafter the. father of appellant Sakti Dusadh had
also filed a Misc. Petition before the Sub-divisional Magistrate, Giridih on 29.7.1986 regarding the occurrence of 18.6.1986 and 26.6.1986 that Khubi Mahto aforesaid and others had abused and assaulted his son and threatened him to implicate in false cases.
5. The prosecution has examined in all six witnesses to substantiate the charge levelled against the appellants PW 4, Tulsi Mahto is the informant of this case and PW 3, Puniya Devi is his mother who was told about the occurrence by the informant. PW 2, Sant Singh Yadav has been tendered in this case PW 1 Lilo Mahto claims to have come to the place of occurrence on alarms. PW 5 is Dr. Ramdas Ram. who has conducted the post mortem examination of the dead body of the deceased and the post mortem report is Ext. 1 in this case. PW 6, Yogeshwar Yadav is the IO of this case who has proved fardbeyan (Ext. 2), the formal FIR (Ext. 3), the inquest report (Ext. 5) and the seizure list regarding seizure of blood stained earth and a piece of bone from the place of occurrence. One Baikunth Ral has figured as DW 1 for the defence.
6. In view of the oral and documentary evidence on the record the learned Court below has found the appellants guilty for the offence under Section 302/34, IPC only and convicted and sentenced them as stated above.
7. Assailing the impugned judgment of the learned Court below the learned counsel for the appellants has strenuously submitted that entire prosecution case is replete with inherent improbabilities and material contradictions which clearly belies the prosecution case and the learned Court below did not meticulously consider the evidence on the record and has gravely erred in coming to the finding of the guilt of the appellants. It has also been contended that admittedly there is enmity between the parties prior to the occurrence which is still existing and alive between the parties and due to this enmity the appellants have been falsely implicated in this case. It has also been submitted that PW 4, the informant, who claims to be the solitary eye-witness of the occurrence can never be termed as an ocular witness of the occur
rence in view of the facts and circumstances emanating on the face of the records and the medical evidence does not at all corroborate the manner of the occurrence of the prosecution case and it totally falsifies the prosecution case. It has also been submitted that in absence of any means of identification there is no question that the informant has identified the appellants and other persons assaulting Khubi Mahto. Lastly, it, has been submitted that there is no iota of legal evidence at all implicating and connecting the appellants with the occurrence in question and as such the impugned judgment is unsustainable.
8. The learned APP has submitted that though PW 4. the informant, is the solitary eye-witness to the occurrence but he was coming with the deceased from Ghor-thambha has stand and in his presence his father Khubi Mahto was assaulted by the appellants and he was also chased by other persons who came out of arhar field and PW 4, the informant, had seen the occurrence concealing himself in the arhar field and in this view of the matter the testimony of PW 4 is worthy of credit and the learned Court below has rightly believed his testimony in coming to the finding of guilt of the appellants in this case.
9. It will admit of no doubt that the occurrence had taken place under the Banyan tree near Mahadeo temple at Tetariatand in village Arkhango Tola Taraunia PS Dhanwar, District Giridih in which Khubi Mahto, the father of the informant, has sustained injuries on his person caused by hard and blunt substance resulting to his death when he was brought for treatment on Trekker at Sadar Hospital, Giridih. PW 6, the IO, has deposed to have seized blood stained earth and one piece of bone from the place of occurrence and had prepared the seizure list (Ext. 4). I will dilate regarding the relevancy of Ext. 4 at its appropriate place later on. Inquest report (Ext. 5) was prepared by ASI, Irsad Ali of Town PS Giridih at the Sadar Hospital, Giridih in which he has found swelling and fracture on the right elbow of the deceased besides injury having blood stained on his right arm, bandaged wound, fracture on his left elbow and swelling on
his left wrist having some blood stains besides injury having blood stains on his right knee and right toe and marks of injury on his back. PW 5, Dr. Ramdas Ram has conduced the post-mortem examination on the dead body of the deceased at 3.30 p.m. on 15.10.1986 and has found the following ante mortem injuries on the dead body of Khubi Mahto, the deceased of this case :
(i) Fracture of the lower end of the left radius;
(ii) Fracture of the upper end of both left radius and ulna bone with dislocation of left elbow joint:
(iii) Fracture of the lower end of left fibula;
(iv) Dislocation of the right elbow joint and fracture of the upper end of radius:
(v) Two abrasions 1″ x 1/4″ on the lateral surface of the right arm;
(vi) Diffused swelling on the left parieto temporal region of the head;
On dissection, the medical witness has deposed to have found sub zero haematoma present on the left parietal temporal region. According to the medical witness the death has been caused due to shock and haemorrhage and time elapsed since death at the time of the post-mortem examination is 15 hours. Ext. 1 the post-mortem report corroborates the testimony of the medical witness. Here it is pertinent to mention that the injury as mentioned in the inquest report (Ext. 5) is inconsistent in material particulars regarding some of the injuries mentioned there into that of the injuries found by PW 5, the medical witness, conducting the post-mortem examination. PW 5 has not deposed to have found any lacerated or incised wound on the dead body of the deceased and abrasion can never be termed as bleeding injury. Therefore, the seizure of the blood stained earth and a piece of bone from the place of the occurrence as per Ext. 5 is definitely inconsistent with the evidence of PW 5, the medical witness. PW 4 and PW 3 have deposed to have carried Khubi Mahto, the deceased of this case, from the vicinity of the Banyan tree to their house and as such, it can be said that the place of occurrence is under or near the Banyan tree.
10. According to the prosecution case. PW 4, the informant, along with Khubi Mahto. the deceased of this case, was returning from Ghorthambha bus stand to his village and when they reached near the Banyan tree west of the Mahadeo temple, all the appellants, who had concealed themselves under the Banyan tree, mounted assault on Khubi Mahto by lathi and Khubi Mahto fell there. It has also been slated in the fardbeyan (Ext. 2) that several person, who had concealed themselves in the nearby arhar field, came there and ran towards the informant to assault him and then informant has fled away towards the village. Let us now scan the evidence on the record. PW 4, Tulsi Mahto, the informant, has deposed that while returning from Ghorthambha bus stand he was behind his father Khubi Mahto at a short distance i.e., 50 yards (vide para 11) and when Khubi Mahto reached near the Banyan tree all the appellants came from behind the said tree and started assaulting Khubi Mahto. He has also deposed that he fled away from there thinking that they may also assault him and he went to the nearby arhar field and claimed to have witnessed the occurrence from there. He has deposed that he had not fled to his house at that moment but when he was chased by other persons named above, he fled to his house and reported about the occurrence to his mother. It is relevant to mention at this stage that the fact of witnessing the occurrence from the nearby arhar field having the arhar plant of 4′ in height therein by PW 4, the informant, is in conflict and inconsistent with the prosecution case as averred in the fardbeyan of PW 4, the informant. PW 4, the informant, has further deposed that he has left Ghorthambha bus stand when the sun has set. The distance of Ghorthambha bus stand from Arkhango village is one mile but he does not know that the distance of Mahadeo temple from Arkhango is 4 kms. or more. He has also deposed that the distance of his house from Ghorthambha is one km. and the way to his village is through Arkhango. PW 6, the IO in para 16 has deposed that distance of village Arkhango is 3 Kms. from Ghorthambha and the distance of Tetariatand from village Arkhango is one km. The aforesaid Banyan
tree west of Mahadeo temple is in Tetariatand which is the place of occurrence. It, therefore, appears that the place of occurrence from Ghorthambha bus stand is at a distance of atleast 3 kms. The informant along with his father has left Ghorthambha bus stand when the sun has set. It, therefore, appears that when Khubi Mahto, the deceased of this case, has reached the place of occurrence, it was definitely dark. The evidence of PW 3 appearing in para 3 is equally relevant on this score in which she has deposed that when PW 4, Tulsi Mahto had come to inform him about the occurrence it was night and 3 to 5 hours of the night has elapsed by that time. PW 4, the informant, was behind Khubi Mahto at some distance when the deceased has reached the place of occurrence. There is no whisper either in the fardbeyan (Ext. 2) of the informant or in the evidence of PW 4 regarding any means of identification and in this view of the matter PW 4 having witnessed the occurrence either from some distance or from the ridge of arhar field as well as identifying the appellants assaulting the deceased appears to be questionable in the facts and circumstances of this case. Therefore, PW 4, the informant, cannot be said to have witnessed the occurrence and he cannot also be said to be an eye-witness to the occurrence. It also appears from the evidence on the record that PW 4 has been set up an eye-witness due to enmity which is existing and alive between the parties on the date of the occurrence and I will dilate regarding this aspect of the matter later on PW 3 is a hearsay witness told about the occurrence by PW 4. Therefore, the evidence of PW 3 has no relevancy. PW 1, Lilo Mahto, who also claims to be an ocular witness of the occurrence, gives totally a different picture of the manner of the occurrence. He has deposed that he was returning from Ghorthambha in the company of informant and the deceased and the road bifurcates into two parts at Mahadeo temple and informant followed the one way and he took the other way for proceeding further. He has further deposed in para 9 of his evidence that when he has reached 200 or 300 yards south from the point of bifurcation of the road he had heard the alarms and came to
the place of occurrence and saw the deceased sitting after getting up and Hari Dusadh told that Khubi Mahto is still alive and at this appellants Hemlal Dusadh and Sakti Dusadh hit the chest of Khubi Mahto forcibly by stone. He has further deposed that he had thereafter fled away from there. It is relevant to mention here that this witness has not deposed to have seen the appellants assaulting the deceased with lathi. Assault by the stone on the chest of the deceased, as deposed by PW 1 is not at all corroborated by the medical witness and the post-mortem report of PW 5 as no injury has been found on the chest of the deceased. The evidence of PW 1 also contradicts the testimony of PW 4, the informant. Therefore, PW 1 can also not be termed as ocular witness of the occurrence. PW 1 has further denied to have stated the IO that he had gone to the house of the informant after hearing about the occurrence and has found Khubi Mahto lying on the cot in an injured state but PW 6, the IO has controverted the evidence of PW 1. In para 12 of his evidence the IO has deposed that PW 1 had stated before him that on getting information of the occurrence he had gone to the house of the informant where he has seen Khubi Mahto lying on a cot in an injured state. In view of the evidence referred to above on the record PW 1 can never be termed as an occular witness to the occurrence.
11. Admittedly, there is enmity between the parties existing and alive prior to the occurrence in question and they were on litigating terms and several cases were sub-judice between them on the date of the occurrence. The learned court below in para 27 of the impugned judgment has elaborately dealt with the cases pending between the parties on the date of the occurrence and has opined that the parties were at daggers drawn from before the occurrence. In view of this the solitary testimony of PW 4, the informant, requires corroboration by any other independent, natural and competent witness of the occurrence. PW 4, being the son of the deceased, is definitely a highly interested witness in this- case and his evidence should not be thrown out on this ground
ipso facto but it should be scrutinized with care and caution. It is the duty of the Court to separate the truth from falsehood and the chaff from the gain. In view of the close relationship, witnesses naturally would have a tendency to exaggerate or add facts but while appreciating the evidence exaggerated facts are to be ignored unless it affects the substratum of the prosecution story. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression of ring of truth is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the core of the case and a hypertechnical approach in perusal of the evidence should be avoided. PW 1 in para 8 has deposed that there are houses of several persons, namely, Dukhi Ram, Mathura Rai, Magistrate Rai, Muneshwar Rai, Shittal Rai, Ramdeo Rai, Dwarika Rai, Baikunth Rai, Shiv Kumar etc. at a distance of only 150 yards from that Banyan tree and the house of Kashi Pandey, the priest, is by the side of that Mahadeo temple. None of them has figured as the prosecution witness in this case. However, Baikunth Rai, as DW 1, has taken oath on behalf of defence in which he has deposed that he along with some of the aforesaid persons on alarms had come to the place of the occurrence but he has not seen any of the assailants and on enquiry from Khubi Mahto, he did not disclose the name of any of the assailants. His evidence is further to the effect that he went to the house of the informant and reported the informant and others regarding the occurrence and at this the informant along with the wife of Khubi Mahto came to the place of occurrence and had carried Khubi Mahto to their house. Let us now refer to the evidence of PW 4, the informant. In para 4 he has deposed that when he came to the place of occurrence in the company of his mother he found his father unconscious and from where he was
brought on a cot to his house. The evidence of PW 3 is that Khubi Mahto, on query, has disclosed the name of all the three appellants as his assailants. It does not stand to reason as to how an unconscious injured person will disclose the name of the assailants. Therefore, the testimony of PW 3 does not at all inspire confidence. It is, therefore, crystal clear that there is no cor-roboration of the evidence of PW 4, the informant by any other natural, competent and reliable evidence on the record rather the evidence of defence as per DW 1 is otherwise that Khubi Mahto did not disclose to him about the name of the assailants. I, therefore, see no ring of truth in the evidence of PW 4, as an eye-witness of the alleged occurrence. Therefore, the false implication of the appellants cannot be totally ruled out in this case due to enmity between the parties existing and alive on the date of the occurrence. There is no report on the record of the Serologist regarding the existence of human blood in the blood stained earth seized by the IO. There is also no evidence on the record to connect that the bone seized from the place of occurrence is a human bone and is a part and parcel of the body by the deceased. The recovery of human bone from the place of occurrence has no co-relation in view of the evidence of PW 5, the medical witness. Therefore, the solitary testimony of PW 4, the informant, uncorroborated in material particulars by any other independent and reliable witness of the occurrence in the background of existing enmity between the parties, is fit to be discarded in this case. The learned Court below has erred in relying upon the testimony of PW 4 in this case without considering the surrounding circumstances involved in the matter in proper perspective. And last but not the least, the total absence of any whisper in the testimony of PW 4 regarding the removal of Rs. 5,000/- from the pocket of his father in course of the occurrence in his testimony equally casts a cloud of suspicion to the very texture of the prosecution case and equally testifies the fact regarding PW 4 not having seen the occurrence, as deposed by him. The learned Court below did not meticulously scrutinize the uncorroborated testimony of PW 4, the solitary eye-witness, in proper perspective with care and caution as well as the surrounding circumstances of this case and has gravely erred in coming to the finding of the guilt of the appellants. Therefore, there is no legal evidence at all on the record to substantiate the prosecution case beyond all reasonable doubts.
12. There is, therefore, merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside. The appellants are not found guilty to the charges levelled against them and they are, accordingly, acquitted and discharged from the liability of their bail bonds.
Lakshman Uraon, J.
I agree.