JUDGMENT
A.K. Prasad, J.
1. The appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life thereunder on the charge of committing the murder of Gopal Hazam in furtherance of their common intention, by Sri. L.K. Sahay. 3rd Addl. Judicial Commissioner, Ranchi, by judgment and order dated 16th May. 1989, passed in S.T. No. 133 of 1988/67 of 1988
2. The prosecution case is as follows:
In the evening 2.4.1987 Gopal Hazam, the deceased, at the Instance of appellant Budhu Mahto, In the Company of Duleshwar Bedia (P.W. 5), his co-villager, went to the house of appellant Budhu Mahto situate at village Mahua Tungri, which is at a distance of about a-mile from village Haratu, the native place of the deceased as well as P.W. 5, to reach Sukhua log. All the three had started for village Mahua Tungri around 6 p.m. from the place of Duleshwar Bedia. The Sakhua log had been purchased by appellant Budhu Mahto. When Gopal Hazam and Duleshwar Bedia were returning the late night, appellant Budhu Mahto accompanied them saying that he would reach them upto some distance. When they reached Piyar Bora Jungle, on the way appellant Budhu Mahto gave an axe blow on the back of Gopal Hazam, the deceased who fell down. In the meantime, the appellants Hawra Mahto. Dipnath Mahto and Rati Mahto came out of their hiding argued with axe and dealt several axe blows to the deceased and wounded him severely. Duleshwar Bedia tried to intervene, but he was chased by appellant Budhu Mahto armed with axe, who escaped hiding himself in the forest and ultimately reached this village Haratu and narrated the story to the informant Suresh Hazam, the brother of the deceased, that all the appellant have axed the deceased to death in Piyar Bera Jungle. Thereupon, the informant accompanied by Duleshwar Bedia(P.W. 5) and other villagers went to the forest to found that the deceased was lying dead in pool of blood with face down-ward and there were cut wounds on his body. On the basis of the information derived from Duleshwar Bedia, the Informant lodged the First Information Report (Exhibit 4) about the incident with Sikidiri Police station the next day around 5.30 p.m. On this basis the present case was instituted, a formal first information report (Exhibit 3) was drawn up and after investigation charge-sheet was laid in Court against the appellants. The motive alleged for commission of the occurrence is that the deceased had taken settlement of 40 decimals of land in village Jaspur from Rarrdayal Lohar, the Zamindar and the appellants wanted to take forcible possession of it and there was a Panchayati, but the appellants were not ready to accept the verdict of the Panchayati. In other words, the land dispute led to the murder of the deceased at the hands of the appellants.
3. The main defence is of innocence and false implication.
4. The point which falls for consideration is whether the prosecution has been able to bring home the charge under Section 302 read with Section 34 of the I.P.C. to the appellant beyond the shadow of reasonable doubt.
5. At the trial, the prosecution has examined 10 witnesses in support of its Case. Out of them P.Ws. 7 and 8, Ura Bedia and Jaldeo Bedia respectively are tendered witnesses. P.W. 10 William Hinz, is a formal witness. P.W. 3, Bhartu Bedia, P.W. 4 Tulsi Karmali and P.W. 5, Duleshwar Bedia. have been declared hostile by the prosecution. The other P.W. are : P.W. 1, Dr. K.P. Srivastava. who held Post-mortem examination on the dead body of the deceased, P.W. 2, Suresh Hazam, the informant P.W. 6, Birsa Bedia, and P.W. 9 Jitendra Kumar Singh, the Judicial Magistrate, who reserved the statement of Duleshwar Bedia under Section 164 Cr.P.C. (Exhibit 2/1).
The defence, on the other hand, did not examine any witness.
6. On consideration of the materials on record, the trial Court arrived at the conclusion that the appellants had committed the murder of the deceased Gopal Hazam in furtherance of their common intention and accordingly he convicted them under Section 302 read with Section 34 of the IPC and sentenced them to life imprisonment as stated above.
7. The factum of murder of Gopal Hazam the deceased is not in dispute. The doctor (P.W. 1) had found 15 incised and two lacerated ante-mortem wound on the person of the deceased. The medical evidence establishes beyond doubt that the death of the deceased was homicidal The prosecution case hinges on the testimony of P.W. 5, Duleshwar Bedia, the sole eye witness. It is well settled that conviction can be founded on the sole testimony of the single eye-witness when it is wholly relied. When the testimony of the single eye-witness is not found to be wholly reliable, then the Court as a rule of prudence insist upon some independent corroboration of his testimony, in material particulars before record in conviction and . Keeping this principle in mind, one may now proceed to scrutinize the evidence of P.W. 5.
9. Learned Counsel for the appellants has assailed the impugned judgment mainly on the ground that the testimony of P.W. 5 is not trust-worthy. Learned A.P.P. appearing for the respondent State, on the other hand, has supported the impugned judgment.
10. P.W. 5 (Duleshwar Bedia) has stated in his chief-examination that on the fateful day around 6 p.m. the deceased came with a Sakhua log to his place there appellant Buddu Mahto was present and appellant Budhu Mahto purchased the log for Rs. 5.00 and at the request of appellant Budhu Mahto, the deceased as well as this witness agreed to reach the log to the house of appellant Budhu Mahto on the assurance given by him that he would reach them back home. He has further stated that thereafter they accompanied appellant Budhu Mahto to his house for reaching the log. He has deposed that they ate and drank at the place of appellant Budhu Mahto and it become late and about 10 p.m. the deceased and this witness left the place of appellant Budhu Mahto in the return journey in the company of appellant Budhu Mahto and when on the way they reached Piyar Bera Jungle, this witness was going ahead of the three appellant Budhu Mahto was behind him whereas the deceased was in the rear. He has made a candid statement that he did not notice whether the appellant Budhu Mahto at that time was wielding any weapon in his hand. This witness has admitted that at that time he was drunk. He has stated that when they reached Piyar Bera Jungle, appellant Hawra Mahto came out of the forest and started assaulting the deceased with Tangi and when this witness enquired from appellant Hawra Mahto the reason for the assault, he chased him, where after he fled under in cover of darkness. He has further stated that appellant Budhu Mahto fled away. He has made categorical statement in chief-examination that he did not witness any other person assaulting the deceased.
At this stage he was declared hostile and cross-examined by the prosecution. He denied the prosecution suggestion to have named the appellants Dipnath Mahto and Rati Mahto before the police or that he had stated before the police that Budhu Mahto had struck the deceased with sharp Tangi on his back or that the other appellants too had assaulted the deceased. The Investigating Officer has not been examined in this case for proving the previous statements attributed to P.W. 5. which have been denied by him. The learned Additional Judicial Commissioner has observed in the impugned judgment that P.W. 5 had made the statements before the police which have been denied by him, as revealed by his statement recorded in the case diary. It is manifest that P.W. 5 has not named the appellants Budhu Mahto. Hawra Mahto, and Rati Mahto in his evidence as the assailants of the deceased, though he had named them as assailants of the deceased before the police. Thus, he has made in-consistent statement on this point at different stages. He has stated in Court that he had narrated the incident to P.Ws. 2, 3, 4, 6 and other villagers the same night around 12.00 O’Clock, but he did not again visit the scene of occurrence in their company.
P.Ws. 2, 3 and 6, on the other hand, have stated that P.W. 5 had accompanied them to Piyar Bera Jungle that night. Thus, these P.Ws. have contradicted P.W. 5 on this point. It is yet another instance of inconsistent statement made by P.W. 5.
P.Ws. 3 and 4 have stated that P.W. 5 did not disclose the names of the assailants of the deceased to them on the night of the occurrence. P.Ws. 2 and 6, on the other hand, have deposed that P.W. 5 has testified to the effect that P.W. 5 had disclosed the names of the appellants as the assailants of the deceased to them on that night. P.W. 5 is not explicit in his evidence that he had disclosed the names of the appellants as the assailants of the deceased to the P.Ws. on the night of the occurrence itself, although he has made a general statement that he had narrated the incident to the P.Ws.
Be that as it may, the main point for consideration is whether the testimony of P.W. 5 is wholly reliable.
11. Exhibit 2/1 is the statement of P.W. 5 recorded under Section 164 Cr.P.C. It has been proved by P.W. 9. Sri Gitendra Kumar Singh, the then Judicial Magistrate, Ranchi, who had recorded the statement. P.W. 5 admits his signature (Exhibit 2) thereon. The attention of P.W. 5 was not drawn to the statements made therein by him.
12. It is intended to show that in his statement recorded under Section 164 Cr.P.C. P.W. 5 had alleged that on their return journey appellant Budhu Mahto had struck the deceased with Tangi on his back, whereafter the other three appellants came out of the hiding and assaulted the deceased with Tangi and on being threatened by the appellant Budhu Mahto he escaped and narrated the incident to the informant (P.W. 2) and other villagers.
It is well settled proportion of law that the statement of witnesses recorded under Section 164 Cr.P.C. is not substantive evidence. It can be used only to corroborate or contradict its maker . The statement under Section 164 Cr.P.C. (Exhibit 2/1) substantially contradicts the testimony of P.W. 5 in Court. It is manifest that P.W. 5 has been making inconsistent statement at different stages. His testimony is not honest and trustworthy. He has not implicated appellant Budhu Mahto, Dipnath Mahto and Rati Mahto as the perpetrators of the crime is question in his evidence. In the given circumstances, it would not be safe to rely on the part of his testimony, which is not corroborated by any independent source or circumstances, that the appellant Hawra Mahto had mercilessly assaulted the deceased.
13. P.W. 2 has stated that there was dispute for land between the deceased and the appellants Dipnath Mahto, Budhu Mahto and Rati Mahto for which there was a Panchayati and the Panches have given the verdict in favour of the deceased as well as P.W. 2 to till the soil. This is the motive alleged for the murder of the deceased by the appellants. In his cross-examination, he has clarified that they had allowed appellant Hawra Mahto and his father to cultivate the land on receiving the money, but the amount taken by the deceased from appellants Hawra Mahto was not returned by him and the deceased as well as P.W. 2 began to cultivate the land and for this there was a dispute between the deceased and the appellants. But this circumstance was not put to the appellants in their examination under Section 313 Cr.P.C. Hence, it cannot be used against the appellants. At any rate, it say at best give rise to some suspicion against the appellants, but the suspicion howsoever strong cannot take place of proof.
14. In view of the discussions made above and on careful consideration of the evidence and materials on record. I am of the view that the charge under Section 302 read with Section 34 of the I.P.C. is not established against the appellants. Hence, the conviction of the appellants and sentence imposed on them by the trial Court cannot be sustained.
15. In the result, this appeal is allowed, and the Impugned judgment and order of conviction and sentence passed by the trial Court are so aside. The appellants are acquitted of the charge under Section 302 read with Section 34 of the I.P.C. and they are released from their bail bonds.
R.A. Sharma, J.
16. I agree