Narayan Roy, J.
1. Heard Mrs. Bina Rani, learned amicus curiae, in Criminal Appeal No. 258 of 1987 and Mr. Ramesh Singh, earned Counsel for the appellant in Criminal Appeal No. 259 of 1987, and also Mr. Ganesh Prasad Jayaswal, learned Additional Public Prosecutor for the State of Bihar.
2. Both these appeals arise out of the common judgment and order of conviction and sentence, therefore, both the appeals have been heard together and are being disposed of by this common judgment.
3. Both these appellants, namely, Bam Bam Manjhi and Paras Rai, have been found guilty under Sections 302/34 of the Indian Penal Code for committing murder of Sarwanand Rai, and they have been sentenced to undergo rigorous imprisonment for life.
4. The prosecution case, briefly stated, is that the informant Ram Sewak Rai (P.W. 1) along with his brother Sarwanand Rai, the deceased, had gone to Neora market on 7.10.1984. By 5.00 p.m. they finished marketing and were to return back to their place, but, in the meantime, accused Paras Rai and Bam Bam Manjhi (both appellants herein) came there in the company of Budhan Yadav, Bachu Yadav, Krishna Yadav and one unknown person and asked Sarwanand Rai to go with them to Neora hospital and asked the informant to remain there. The informant, accordingly, stayed back, whereas the deceased and the accused-persons, named above, went towards Neora hospital. The informant waited there for hours together and finding no trace of his brother, he became fearsome and all of a sudden, he heard alarm of ‘Bachao Bacho’. He recognised the voice of his brother Sarwanand, and, accordingly, he and one Satyeridra Singh (P.W. 2) went towards the place of alarm and there he saw his brother Sarwanand at a distance of 50 yards east to Neora hospital in a lane, where Sarwanand was found screaming and the accused-persons were seen fleeing away from that place. He saw profused bleeding from the neck of his brother and he chased the accused-persons and two of the accused-persons, namely, these two appellants, were caught with the help of the villagers. The appellants, however, confessed before him and P.W. 2 that they had cut the neck of his brother Sarwanand. He then went to Neora State Dispensary and from there, Sarwanand, the deceased, was shifted to Danapur Sadar Hospital, where he succumbed to the injuries. Fardbeyan of P.W. 1 was recorded at Danapur hospital by Venkatesh Sharama, Officer-in-Charge of Shahpur Police Station and the same was handed over to P.W. 6 in the Sadar Hospital, Danapur itself.
5. On the basis of fardbeyan a formal First Information Report (Ext. 8)was drawn up and a case under Section 302 of the Indian Penal Code was instituted against these appellants and three unknown persons/After due completion of investigation, these two appellants were sent up for trial. The defence of the appellants is denial of the occurrence and a plea of innocence.
6. The prosecution, in all, examined seven witnesses in support of its case. Out of them, P.Ws. 4 and 7, namely, Kameshwar Pandey and Chandraka Rai, respectively, are formal witnesses. P.W. 1, Ram Sewak Rai, and P.W. 2, Satyendra Singh, are material witnesses on the point of occurrence and also on the point of identification. P.W. 3, Dr. Basudeo Narain Choudhary, is the Medical Officer, Neora State Dispensary, who gave first aid to the injured Sarwanand. P.W. 5, Miss B.N. John, is the Medical Superintendent, who held autopsy over the dead body of the deceased. P.W. 6, Rajendra Pd. Singh, is the Investigating Officer of this case.
7. P.W. 1 Ram Sewak Rai, in his evidence firstly has supported the prosecution version of the case, as disclosed in the fardbeyan (Ext. 6). He thereafter stated in his evidence that on 7.10.1984 in the evening hours, he had gone to Neora market in the company of his brother Sarwanand, the deceased, and after finishing marketing, he and his brother, Sarwanand Rai, were ready to go to their native village, the appellants herein, Budhan Yadav, Bachu Yadav, Krishna Yadav and one unknown persons, came there and asked his brother, Sarwanand to follow them towards Neora Hospital, and Sarwanand proceeded in the company of those persons and he stayed back and when his brother did not come back within the expected time, he became fearsome and he heard alarm and on hearing the alarm, he went towards the hospital side with P.W. 2, Satyendra Singh, and then he found his brother injured and accused-persons were seen fleeing away, and the appellants were caught on chase by the villagers. In his evidence, he has further stated that he was waiting for his Neora hospital and had gone to the place of occurrence only on hearing hulla. In his evidence, he has further stated that when he reached near the place of occurrence, he had seen Krisha Rai, Bam Bam Manjhi, Budhan Yadav and Bachu Yadav pressing his brother, whereas accused Paras Rai was cutting his neck with a fasuli and on seeing him, the accused-persons started running away. In cross-examination of this witness several suggestions were put suggesting that on the fateful day, he was not present at the place of occurrence, as he was in service at Dhanbad, and that the deceased was taking wine in the company of the accused-persons in the house of the widow of Jagat Rai. This witness, however, denied suggestions put by the defence.
8. P.W. 2, Satyendra Singh, in his evidence, has stated that on 7.10.1984 at about 6.00 p.m. while he was sitting at his darwaja, he heard hulla of ‘Pakaro Pakaro’, and on hearing hulla he came out of the darwaja and saw some persons catching hold the appellants and when he reached there, the appellants confessed before him that they had cut the neck of Sarwanand, the deceased. He has further stated in his evidence that the appellants, Bam Bam Manjhi and Paras Rai, disclosed their names before him and other villager, who had caught them. He has further stated in his evidence that immediately thereafter he went to the State dispensary, where he saw the doctor (P.W. 3) giving first aid to Sarwanand and there from he went to bring a Jeep to shift the injured to Danapur Sadar Hospital. In his cross-examination, this witness has stated that he had not stated before the Investigating Officer (P.W. 6) that he was the relation of Sarwanand, the deceased. He has further denied the fact in his evidence that he had gone to the police station on a bicycle and had informed the police.
9. P.W. 3, Dr. Basudeo Narain Choudhary, who firstly treated the deceased, Sarwanand stated in his evidence that on 7.10.1984 at about 6.00 p.m., while he was sitting on the Chabutara of the hospital, an injured man came there and fell on the verandah of the Dispensary. He has further stated that he saw blood oozing out of the neck and immediately thereafter he started giving first aid to him and tried to bandage the wound. In his cross-examination, he has stated that no man of the injured had reached the hospital till the injury was bandaged. He has further stated in his cross-examination that he had not informed the police on telephone about the occurrence. He has further stated in his cross-examination that some kith and kin of the deceased came there with a Jeep and the injured, Sarwanand, was shifted to Sadar Hospital, Danapur. From the evidence of P.W. 3, it would be manifest that neither P.W. 1 Ram Sewak Rai, nor P.W. 2, Satyendra Singh, had reached the hospital till the injury of Sarwanand was bandaged and they came there after sometime on a Jeep and accordingly, the injured, Sarwanand, was shifted to Sadar Hospital. The evidence of P.Ws. 1 and 2 in the light of P.W. 3 appears to be shaky to the extent that even though they claimed to have gone near Neora hospital on hearing alarm and there they had seen the accused-persons cutting the neck of the deceased. Their evidence further becomes doubtful in view of the evidence of doctor (P.W. 3) to the extent that they reached the dispensary after sometime on hearing the news of assault on Sarwanand, the deceased.
10. The Investigating Officer (P.W. 6) in his evidence has stated that he received a telephonic message from the Station Master, Neora Railway Station, that somebody’s neck has been cut and the assailants have been caught on chase. On receiving the telephonic message he made Sanha entry No. 126 dated 7.10.1984 (Ext. 5) and proceeded to Neora and from Neora he went to Danapur Sadar hospital, where he found Venkatesh Sharma recording the fardbeyan of Ram Sewak Rai, P.W. 1. In his evidence, he has further stated that he again took the statement of P.W. 1 and prepared the inquest report and went to the place of occurrence, where these appellants were produced before him by the villagers. Sufficient injuries, however, were found on the person of these appellants and accordingly, they were sent to Neora hospital for treatment. He has further stated in his evidence that copious blood was found in a lane leading to the market and by the side of Neora State Dispensary. From his evidence, it further appears that the place of occurrence was surrounded by several houses and when he had gone to interrogate the residents of those houses, none turned up before him. In paragraph No. 31 of his evidence, he has stated that P.W. 1, Ram Sewak Rai, the informant, had not stated before him that he had seen these appellants and others cutting the neck of his brother. He has further stated that Ram Sewak Rai had not stated before him that these appellants had confessed their guilt before mohalla people. In paragraph No. 32 of his cross-examination, he has sated that P.W. 2, Satyendra Singh, had stated before him that he was relation of Sarwanand Rai, the deceased. He had further stated before him that on hearing the news of assault on Sarwanand, he went to his house on a bicycle to inform the family members. In the same paragraph, the Investigating Officer (P.W. 6) has also stated that Satyendra Singh (P.W. 2) had stated before him that he came to know that the deceased in the company of the accused-persons was taking wine in the house of the widow of Jagat Rai since 3.00 p.m.
11. From the evidence of the Investigating Officer (P.W. 6), it is manifest that P.W. 2 is relation of P.W. 1. It is also manifest from his evidence that Satyendra Singh (P.W. 2) had not stated about the presence of P.W. 1 at the place of occurrence. It is further evident from the evidence of P.W. 6 that the deceased was already in the company of the accused-persons from before, as he was seen taking wine since 3.00 p.m. it-self in the house of widow of Jagat Rai. In view of the evidence of the Investigating Officer (P.W. 6) the story set forth by P.W. 1 that he had accompanied his brother, Sarwanand Rai, to Neora market becomes doubtful. The presence of P.Ws. 1 and 2 is also doubtful in view of the evidence of the Investigating Officer and P.W. 3, the doctor, who firstly gave first aid to the injured deceased.
12. From the evidence of P.Ws. 1, 2, 3 and 6, it is apparent that the villagers, who had caught these appellants did not turn up before the Investigating Officer (P.W. 6) at the first instance when the accused-persons were handed over to the Investigating Officer or even at the subsequent stage. At, the same time, it is also manifest that none of the mohalla people, who were very close to place of occurrence, turned up before the Investigating Officer for interrogation despite best efforts made by the Investigating Officer (P.W. 6). P.W. 1, the informant, in his evidence himself stated that the occurrence had taken place in between 5.30 p.m. to 6.00 p.m. and that was the full moon-night. The accused-appellants were handed over to the police at about 9.00 p.m. in the night. Thus, I find discrepancy in the evidence dt P.W. 1 Ram Sewak Rai and the Investigating Officer (P.W. 6), so far as time of occurrence is concerned. It appears that the occurrence had taken place in the late hours of the evening and P.Ws. 1 and 2 had not seen the occurrence. From the evidence of P.Ws. 3 and 5 the doctors, who gave first aid and who held autopsy, it appears that sufficient injuries were found on the person of the deceased, which were sufficient in natural course to cause death. The factum of assault on the deceased is proved from the evidence of the prosecution witnesses, but the manner of occurrence has not been divulged by the prosecution witnesses beyond all reasonable doubts nor the prosecution witnesses have proved the charges against the appellants beyond all reasonable doubts.
13. In view of the discussion aforesaid, therefore, it must be held that P.Ws. 1 and 2 are not trustworthy witnesses and they have with-held the material part of the occurrence. It is further held that the prosecution has failed to bring home the charges against the appellants, and, therefore, the impugned judgment and order of conviction and sentence passed against the appellants is not sustainable.
14. In the result, this appeal is allowed and the impugned judgment and order of conviction and sentence is set aside and the appellants are acquitted of the charges levelled against them. Since the appellants are on bail, they are, therefore, discharged from the liabilities of their bail-bonds.
15. Mrs. Bina Rani, who has appeared as amicus curiae in Criminal Appeal No. 258 of 1987, will be entitled for legal remuneration from Patna High Court Legal Services Authority.
M.L. Visa, J.
16. I agree.