JUDGMENT
Lakshman Uraon, J.
1. The appellants have preferred this appeal against the judgment and order of conviction and sentence dated 22.6.1989 passed by the learned 1st Addl. Sessions Judge, Dumka (SP) in Sessions Case No. 206/12 of 1988 sentencing each of them to go RI for life for the offence under Section 302/34, IPC.
2. The prosecution case as per the fardbeyan of the informant, Janki Devi, PW 1, is that, on 19.4.1988 at about 3 p.m., she was sitting at the door of her house. She saw some villagers, armed with lathi, bahangi etc. running towards nursery raising hulla. She also went towards nursery and in her way she saw chaukidar, Budhan Rai, PW 4, also going towards nursery. When she reached near nursery then she saw that her brother, Lal Mohan Rai, was being assaulted at random by the villagers, Karman Rai, Bideshi Rai, Gouri Shankar Rai, Mangru Rai and Mahadeo Rai, all the appellants of village Karnpura with lathi, sabal, bahangi etc. The appellant, Gauri Shankar Rai, assaulted with sabal and the other appellants assaulted with lathi and bahangi to her brother. Her brother, Lal Mohan Rai, sustained injuries on his head due to assault with sabal resulting his death. Thereafter all the appellants fled away. Then she went to her brother who had already died. All the appellants are her gotias who had differences with her brother and finding an opportunity on that day they murdered her brother, Lal Mohan Rai, at nursery. Her fardbeyan was recorded by the S.I., A. Khalique, PW 8, Officer-in-Charge, Kathikund PS, on the same day i.e. on 19.4.1988 at about 9 p.m. in Karnpura New Forest Nursery, Kathikund, on which she gave her LTI.
3. In this case the only eye-witness of the alleged occurrence is the informant, PW 1, Janki Devi, sister of the deceased, Lal Mohan Rai. PW 2, Sania Devi, is hearsay witness who came to know about the alleged occurrence on the information given by the informant. She is the widow of Lal Mohan Rai. She found the dead body of her husband at nursery, She was informed by the informant, Janki Devi who is her nanad that Karman, Bideshi, Gauri Shankar, Mahadev and Mangru assaulted her husband. Gauri Shankar assaulted with sabal, Bideshi with bahangi and others with lathi resulting the death of her husband. PW 3, Jitan Devi, is a tender witness. PW 5, Jatal Rai, saw the dead body of Lal Mohan Rai in the next morning. He did not support the prosecution case hence he has been declared hostile by the prosecution. He has denied that the inquest report was prepared at the very night at nursery by the I.O. rather his LTL was taken on the next date. At village home of the deceased the seized materials were not shown to him. PW 6, Jhari Mohli, is an witness on the inquest report prepared by the I.O. in carbon processes on which he signed, Ext. 1 and also witness, Mangan Rai, PW 7, signed on it, Ext. 1/1, whereas, witness, Jatal Rai, PW 5, gave his LTI on it.PW 7, Mangan Rai, is also eye-witness on the inquest report prepared by the I.O. at nursery on which he also signed. The I.O. also seized bloodstained soil, piece of wood and prepared seizure-list on which he also signed, Ext. 1/2 and Jatal Rai gave his LTI on it. The I.O. also seized irrigating bucket besides wooden piece by the side of the dead body of Lal Mohan Rai which were material Exts. I-I/3 and irrigating bucket, material Ext. II.
4. PW 4, Budhan Rai, also claims to be an eye-witness who was returning from village Latamtola alongwith Lal Mohan Rai at about 3 p.m. when both of them reached Karnpura nursery on the Bahiar. Lal Mohan Rai entered into the nursery and the appellants started assaulting him. He has deposed that the appellant, Bideshi Rai, assaulted with bahangi and the appellant, Karman Rai, with lathi. Then he fled away from that place. While fleeing away he saw Gauri Shankar Rai coming from the village having a sabal and was proceeding towards nursery. When he further proceeded then he saw the informant, Janki Devi, also going towards nursery. This witness went to his home. Later on PW 1, Janki Devi, went to his home and informed that her brother, Lal Mohan Rai, was murdered and then he went to thana alongwith the informant. The officer-in-charge went to Karnpura alongwith armed forces but this witness, Budhan Rai, PW 4, chaukidar, stayed at the thana. The reasons of the alleged assault was quarrel with the gotias of the deceased who are the appellant. This witness in his cross- examination, para 3, has deposed that the appellant, Bideshi Rai, Karman Rai, Mangru Rai and Mahadev Rai were at the nursery and were working there in planting. At that time no one of the forest department was there. Again he has deposed that the deceased. Lal Mohan Rai was apprehended in a dacoity case. He does not know as to why Lal Mohan Rai had gone to Latamtola. This witness had also gone to Latamtola on that day to serve notice and was returning home. This witness did not go to the nursery where the alleged assault took place. He never raised any hulla rather he fled away. He met Janki Devi at a distance of 50 yards from her house but did not inform her what he saw. Thus, this witness is also not the eye-witness of the alleged occurrence as the nursery was situated at a distance of 30-40 yards away from the road through which he was passing and claims to have seen that Bideshi Rai assaulted with bahangi and Karman Rai with lathi. He does not whisper anything about the other three appellants as to whether they assaulted the deceased or not. On the other hand, four appellants except the appellant, Gauri Shankar Rai, were already there working at the nursery. This witness does not know as to why the deceased, Lal Mohan Rai, had gone to village, Latamtola and as to why he went to the nursery. As this witness did not go to nursery, this shows that he is not at all an eye-witness who could not have seen the alleged assault from a distance of 30-40 yards from the road rather he fled away out of fear and he met the informant, Janki Devi who was going towards nursery and also saw the appellant, Gauri Shankar Rai, going towards nursery from his home. Thus, he is not an eye-witness as to whether Gauri Shankar Rai assaulted the deceased with sabal or not. So also the informant who met him on her way to nursery, could not have seen the alleged assault to her brother. However, she has deposed that while she was sitting at her door then she saw all the appellants going towards nursery armed with lathi, bahangi and sabal. While sitting at her door, she also followed them. This evidence of the informant is belied by the evidence of the chaukidar, PW 4, Budhan Rai that four appellants, Karman Rai, Bide shi Rai, Mahadev Rai and Mangru Rai were already there at nursery and were working in planting. He met the appellant, Gauri Shankar Rai, who was armed with sabat, going towards nursery on his way. Thereafter this witness, PW 1, Janki Devi, claims that she also followed them is quite contradictory with the evidence of PW 4, Budhan Rai. She claims herself to be the eye-witness and had deposed that all the appellants assaulted on the head, left leg of Lal Mohan Rai resulting his death. Thereafter, they fled away. She admits that there is no house of anybody near the nursery which is at a distance of one K.M. away from her village. The nursery is situated after the Bahiar and there are 10-12 houses before the Bahiar. She claims that while her brother, Lal Mohan Rai was returning alongwith chaukidar, Budhan Rai, PW 4, from village Latamtola, then no one was present at nursery. This also contradicts the statement of Budhan Rai, chaukidar, PW 4. Her statement that the appellants reached at nursery half an hour prior to her arrival, is also not supported by any of the witnesses including PW 4, Budhan Rai, chaukidar, who was returning alongwith Lal Mohan Rai from village Latamtola.
5. PW 9, Dr. Ramanand Sail, conducted post-mortem examination on the dead body of Lal Mohan Rai on 21.4.1988 at 10 a.m. and found (1) swelling over left parietal region and occipital region of the skull. He found fracture of left frontal to left parietal region and depressed fracture of the occipital bone with laceration of the connecting brain and meanings and a big haemotoma was found in the cranium. £2) On dissection of chest fracture of 2nd to 4th ribs of left side and 2nd & 3rd ribs of right side present with laceration of the connecting plura and lungs and huge collection of clotted blood formed in the chest cavity. (3) Fracture of left lower end of tibia and fibula present. In the opinion of this witness the death was due to shock and haemorrhage as the result of injury Nos. 1 & 2 or either one which was sufficient enough to cause death in ordinary course of nature. He prepared the post-mortem examination report in his pen and signature, Ext. 8. The injuries were caused by a hard and blunt substance like lathi and bahangi within 72 hours from the time of the post-mortem examination.
6. PW 8, Abdul Khalique, was informed by PW 4, Budhan Rai, ckaukidar, on 19.4.1988 at about 6 p.m. that Lal Mohan Rai and his gotias quarrelled resulting the death of Lal Mohan Rai. He entered S.D. Entry No. 288 dated 19.4.1988. The S.D. entry was made in the pen of S.I., Md. Muslim, under his signature, Ext. 2. Thereafter he proceeded for Karnpura Latamtola. He could not find the family members of Lal Mohan Rai in village and was informed that they had gone at nursery. Then the I.O. proceeded for Kothia Bahiar where the forest department has got a nursery and reached there at 9 p.m. He found the dead body of Lal Mohan Rai. He also saw the informant, Janki Devi, there whose fardbeyan was recorded at new forest nursery on which she gave her LTI the fardbeyan is in his pen and signature, Ext. 3. On that basis the case was registered. He prepared the inquest report of the deceased in carbon process, Ext. 4. He found the nursery situated at a lonely place. The dead body was found in a pool of blood having wooden pieces three in numbers, one small lathi and one earthen pot. At the P.O. he found blood- stain on the straw of the keyari. He seized those articles and bloodstained soils and in presence of witnesses prepared seizure-list, Ext. 5. He also sketched the map of the P.O., Ext. 6. The dead body was brought to village and sent for postmortem examination. Thereafter he sent the seized blood-stained soils and bloodstained clothes for chemical examination.
7. The learned counsel for the appellants has argued that actually there is no eye-witness of the alleged occurrence although PW 1, informant, Janki Devi, claims herself to be the eye-witness and partial eye-witness is PW 4, Budhan Rai, chaukidar, who was returning home alongwith Lal Mohan Rai but Lal Mohan Rai went to the nursery. When Lal Mohan Rai was being assaulted then PW 4, Budhan Rai, fled away. Thus he could not have seen any occurrence of assault on Lal Mohan Rai from a distance of 30-40 yards away from the nursery. Budhan Rai, PW 4, had informed the police at night itself but only station diary was entered and other information which was the FIR, was not brought into record but subsequently when the police came to the village and went to the nursery then the Jardbeyan of Janki Devi was recorded which is not the actual FIR. PW 4, Budhan Rai, while went to thana at night and informed the police and had not disclosed the name of the appellants before the police. It is the FIR which clearly indicates that the informant and the others have implicated these appellants who are gotias, only due to enmity. The informant, PW 1, is also not the eye-witness as she was sitting at home at that time. She followed the appellants who left the village armed with sabal, lathi and bahangi and were going towards nursery. Janki Devi followed them and reached after half an hour at nursery. Prior to that her brother was done to death. It was working day in the nursery. The appellants were the employees who were working there except Gauri Shankar Rai who was seen going from the village home with sabat in his hand.
8. It was also submitted that the learned Court below had erred in observing that PW 2, Sania Devi, has corroborated the statement of PW 1, Janki Devi, and it was also corroborated by the I.O. and the Doctor. The Doctor while examining the dead body did not find any injury to have caused by sabal rather all the injuries were caused by hard and blunt objects. Thus the evidence of PW 1, Janki Devi, that the appellant, Gauri Shankar Rai was armed with sabal and assaulted her brother, Lal Mohan Rai, indiscriminately, is not supported by the medical evidence. Even PW 1, Janki Devi, claims herself to be the eye-witness but she had not alleged specifically as to who assaulted in which part of the body of her brother. Even if it is assumed that she was there then she returned home and informed the chaukidar, PW 4, Budhan Rai asking him to inform the police but before him also at night she did not disclose the name of these appellants and assaults resulting the death of her brother.
9. In view of my above considered facts I am of the opinion that neither PW 1, Janki Devi is the eye-witness nor PW 4, Budhan Rai, chaukidar. The information given by Budhan Rai, PW 4, at night to the police, did not disclose the name of the assailants, who was informed by Janki Devi at his home. Janki Devi did not raise hue and cry in the village except informing chaukidar, Budhan Rai, PW 4, to go to thana. PW 4, Budhan Rai, has deposed that at night he was informed that Lal Mohan Rai had some quarrel with his gotias who was murdered. The names of the gotias were not disclosed to him. The chaukidar neither returned at night to his village home nor went to nursery alongwith the police, rather he remained at thana itself. This is also quite unnatural. Being a chaukidar and informant he did not come back to the P.O. or the village alongwith the I.O. – and police officials. There was no reason of his stay at thana at night when the alleged occurrence took place in the Bahiar forest nursery and he was also returning home alongwith Lal Mohan Rai. I do not find any reason why Lal Mohan Rai went to the nursery where four appellants were already working at 3 p.m. Even the chaukidar when saw the appellants, Bideshi Rai and Karman Rai assaulting Lal Mohan Rai with bahangi and lathi respectively, then he fled away and went to home without raising any hulla. Even he did not inform any of the villagers rather he met Gauri Shankar Rai going with a sabal and thereafter he met Janki Devi going towards nursery. Even at that time he did not talk with Janki Devi about the alleged assault made by Bideshi Rai and Karman Rai on the person of Lal Mohan Rai, brother of PW 1, Janki Devi. All these conducts of the informant, PW 1, Janki Devi and PW 4, Budhan Rai create doubt in the prosecution case itself. As Budhan Rai, PW 4, has deposed that Lal Mohan Rai was apprehended in a dacoity case he did not know as to why Lal Mohan Rai had gone to village Ratamtola. This shows that Lal Mohan Rai might have been murdered by some one else whose dead body was found in the forest nursery at Bahiar which is a lonely place. The learned Court below has rightly disbelieved the evidence of PW 4 in the facts and circumstances of the case. PW 2 is a hearsay witness and the finding of the learned Court below regarding the corroboration of evidence of PW 1 by PW 2 is perverse.
10. In view of the fact that the evidence of PW 1, Janki Devi, remained uncorroborated by any of the independent witnesses including the chaukidar, PW 4, Budhan Rai. Her statement-in-chief is also not quite trustworthy and shows that she is not at all an eye-witness of the alleged occurrence but due to enmity with her gotias, these appellants have been falsely implicated in this case. The solitary testimony of PW 1, the informant, uncorroborated in material particulars by any other evidence of natural and competent witness is replete with inherent improbabilities which cast a cloud of suspicion to the credibility of the prosecution case.
11. In view of this fact I find that the prosecution case is full of doubts and the benefit of doubts should go to the appellants.
12. In the result this criminal appeal is allowed and the impugned judgment and order of conviction and sentence passed by the learned Court below in Sessions Case No. 206/12 of 1988, is hereby set aside. As all the appellants are on bail, they are discharged from the liabilities of their bail-bonds furnished in that case.
Vishnudeo Narayan, J.
13. I agree.