JUDGMENT
D.P. Singh, J.
1. All the three appeals arising out of the same impugned judgment; have been heard together and are being disposed of by this common judgment. All the appellants in these appeals stand convicted under Sections 302/34 and 201/34 of the Indian Penal Code and they have been sentenced for life under Section 302/34 of the Indian Penal Code each and RI for three years under Section 201/34 of the Indian Penal Code each, the sentences to run concurrently.
2. Factual matrix leading to these appeals are that deceased Govind Sahu had gone to sell potato in Larango Bazar within Senha police station, District-Lohardaga in the after noon of 30.6.2001. When he was returning, the appellants, named above overpowered him near Marpo bridge and killed him. They further concealed the dead body. The Senha police was informed by village choukidar on receiving information regarding the incident from the informant Senha police arrived at Morpa bridge at about 11 a.m. and recorded the statement of the informant Rajeshwar Sahu PW 6. According to the informant, the deceased was given dagger blows by all the appellants because of previous enmity. He further asserted that the incident was seen by Lakhan Yadav, Sarpanch, Morpa and others on the basis of which Senha P.S. Case No. 35 of 2001 was registered under Section 302/201/34 of the Indian Penal Code. The police seized the left over articles of the deceased from the place of occurrence and started searching for the body. The dead body was recovered in the after noon lying concealed in the woods situated at a distance of 2 k.m. The police after investigation submitted charge-sheet against the appellants under Section 302/201/34 of the Indian Penal Code.
3. The case of the appellants was committed for trial before the Court of sessions where they were charged on 1.5.2002 under Section 302/201/34 of the Indian Penal Code. All the four appellants pleaded hot guilty and claimed false prosecution due to previous enmity. However the learned trial Court after examining the witnesses found and held all of them guilty for the offences charge and sentenced them as mentioned aforesaid.
4. The present appeals have been preferred separately by Sheo Nandan Sahu being Criminal Appeal No. 1667 of 2004 and by Raiya Mahto @ Bhagat being Criminal Appeal No. 1402 of 2004 and jointly by Raiya Mahto along with two others being Criminal Appeal No. 1476 of 2004. As such Criminal Appeal No. 1402 of 2004 filed on behalf of Raiya Mahto @ Bhagat is apparently infructuous and not maintainable. The appellants have asserted that their conviction is not maintainable on the following grounds.
(i) That the prosecution witnesses are not truthful and reliable.
(ii) That there is no eye witness of the occurrence.
(iii) That the informant and wife of the deceased PW 7 have not been able to show that they were actually witness of assault on the deceased.
(iv) That the learned trial Court has not considered the material contradictions in the statement of the witnesses properly.
(v) That the non examination of the village choukidar Nejamat Ansari further makes the prosecution case doubtful.
(vi) That the conduct of PWs 7, 1,5 and 6 lack credence.
5. Accordingly the learned Counsel for the appellants submitted that the prosecution version is not acceptable. They have further pointed out that the inconsistent evidence of PWs 5, 6 and 7 regarding the manner of assault and their claim to be eye witness of the occurrence, itself creates reasonable doubt because of the fact that the fardbeyan did not mention these facts before the police. Therefore the appellants may be acquitted of the charges.
6. We have anxiously considered the above points raised by the counsels for the appellants before us. The prosecution has examined only eight witnesses in support of the case. PW 1 Ram Janam Sahu is father of the deceased; PW 5 Deepak Sahu, PW 6 Rajeshwar Sahu and PW 7 Sakla Devi are brothers land wife of the deceased. PW 2 Ram Lakhan Mahto named, as eye witness of the occurrence in the fardbeyan has been declared hostile by the prosecution, as he did not support the prosecution. PW 3 Anil Kumar Singh is a witness on inquest report and proved his signature on it as Ext. 1. PW 4 is Dr. Ramesh Kumar who conducted the postmortem and proved his report as Ext. 2 on the dead body of the deceased. The dead body was found with six incised wounds on neck, abdomen resulting in death caused by sharp cutting weapon like dagger.
7. According to PW 1, he along with PWs 5 a 6 was working in the field at about 5 p.m. when people returning from Bazar were heard talking that Govind was killed. He asserts that he along with PWs 5 and 6 went to the place of occurrence but the appellants chased them away. According to him, thereafter they returned and when PW 7 Sakla Devi wife of the deceased returned in the night, she informed them that the appellants have killed her husband. He further asserts that village choukidar was informed and they went again at the place of occurrence but the dead body could not be located. This witness, therefore, asserted that as soon as the incident came to their knowledge they went at the place of occurrence twice before the fardbeyan was lodged. During cross-examination, this witness has admitted vide para 9 that the wife of the deceased returned at 10 p.m. and she was asked by them. He further asserted that the village choukidar was already informed. He has admitted in para 15 that the dead body was recovered at about 3 p.m. PW 5 Deepak Sahu supporting his father asserted that when they reached near Morpa village they were chased away by the appellants. According to him when they again went in search of his brother they could not find the dead body and due to darkness returned to their home. The village choukidar informed the police in the morning. He further asserted that the police recovered stained stone, Jerkine, bag etc. from the place of occurrence prepared seizure list in his presence vide Ext. 3. This witness has further stated that PW 7 arrived at the house in the night but she could not inform them. However she mentioned in the morning regarding the involvement of the appellants in killing of her husband in her presence. He contradicts his father at this point that PW 7 has disclosed to them the incident in the night itself. This witness has further admitted in para 12 that Morpa Bridge was situated at about 7 k.m. from his village. He admitted in para 29 that they had gone in search of the deceased with other villagers but they are not eyewitness in this case. He also admits in para 33 that dead body was recovered at a distance of 300 ft. from the place of occurrence.
8. As against this PW 6, the informant supporting his fardbeyan before the police asserted vide para 3 that the dead body was recovered at a distance of 3 k.m. from Village-Ugara in the forest. The police has prepared inquest report in his presence vide Ext. 5. This witness during cross-examination admitted that they reached at the police station but his fardbeyan was not recorded by the police vide para 11. He also admits that before going to police station he had a talk with PW 7 Sakla Devi and she has disclosed the names of the appellants. He admitted vide para 13 that the dead body was recovered at a distance of 200 yards from the bridge. He admitted vide para 14 that he had stated before the police that the deceased had gone with PW 7 to market and she had given details to him in the morning. When we perused the statement of PW 7 said to be an eye witness of the occurrence it appears that she has given a different version. According to her as soon as they reached and entered river Morpa, appellants standing there caught hold of her husband and gave “chhura” blows to him. She further asserted that she was chased away and reached her house at about 9 to 10 p.m. She admits that she informed the family members regarding the incident in the morning. She admits in para 15 that she did not raise alarm during the occurrence and she covered distance from place of occurrence to her house in half an hour but she cannot say at what time she reached the house and who were present.
9. The learned trial Court has relied upon the ocular evidence of PW 7 in holding the appellants guilty for the offences charged against them. The learned Counsel for the appellants drew our attention towards the contradictions in the statement of PWs 6 and 7. According to the informant he had gone to police station in the morning of 1st July, 2001 after having talk with the wife of the deceased. PW 7 is the eye witness who has given the details to PW 6 but in the fardbeyan though recorded at 11.15 hours at the place of occurrence, the informant has not disclosed that he got this information from his bhabhi, nor named the lady as the eye witness of the occurrence. The fardbeyan mentions that the incident was seen by PW 2 Lakhan Yadav, the sarpanch of Morpa village. This witness has denied any knowledge about the occurrence. He further admitted that he was-neither examined by police during the investigation. According to learned Counsel for the appellants, if PW 7 was actually eye witness of the occurrence she must have been named by the informant to be the eyewitness of the occurrence. In this context, our attention was drawn towards the exaggeration and assertion made by PWs 1, 5 and 6 that they got the information regarding the assault on the deceased from the persons who were returning back from the Bazar. It is also submitted that these three witnesses had gone near the place of occurrence to find the appellants, the natural conduct would have been to report the matter immediately. However their presence and occasion to visit the place of occurrence becomes doubtful with their conduct, as this has not been mentioned in the fardbeyan. The learned Counsel for the appellants, accordingly, submitted that the entire prosecution case claiming PW 7 as the eye witness and PWs 1, 5 and 6 as the probable witness suffers from lack of credibility. It was pointed out that in the event that the lady was eye witness of the occurrence, and she arrives at her house just after half and hour, the incident must have been reported to PWs 1,5 and 6 and other villagers.
10. PW 7 S.I. Chetanand Sinha has recorded the statement of PW 6 near Morpa bridge at 11.15 p.m. He has stated that village choukidar Nejamat Ansari reported to him regarding same incident on which he went to place of occurrence where the statement of the informant was recorded. He found certain articles; scattered near the place of occurrence and seized them vide Ext. 7. According to him after this they went in search of the dead body and found it at a distance of 2 k.m. from the bridge vide para 7 inside the forest. He prepares the inquest report vide Ext. 6. This witness has been cross-examined at length by the defence for which he admitted that the village choukidar has not named the deceased nor the appellants at the time of SD entry. He further admitted in para 17 that when he reached at the Morpa bridge, the informant along with many persons were available. He further admitted that the place of occurrence was situated at 100 yards from the bridge where he found blood stained soil as well as the scattered articles of the deceased seized vide Ext. 4. He has admitted in para 23 that the dead body was recovered at 14.40 hours from the forest and the same was sent with village choukidar for post mortem. He admitted that the statement of the witnesses were recorded on 1st July, 2001 at the place of occurrence. He contradicted the assertion of PWs 1, 5 and 6 vide paras 32, 33 and 35 regarding their knowledge and visiting the place of occurrence just after the occurrence. He admitted that he recorded the statement of PW 7 after recovery of the dead body. As such it appears that the prosecution witnesses had not disclosed before the IO on 1st July, 2001 that they had occasion to learn about the incident in the evening of 30.5.2001 itself and they had gone to the place of occurrence. The village choukidar has not been examined by the prosecution for the reasons best known to it. The version of PWs 1, 5 and 6, therefore, stands contradicted by the IO regarding their knowledge of the incident in the evening on 30.6.2001 itself. So far the credibility of eyewitness PW 7 of the occurrence is concerned, she has admitted that she has disclosed the incident to the family members only in the morning as she was awestruck. The learned APP has stressed before us that the lady having been shocked, could not inform- the family members regarding the incident in the night.
11. The learned Counsel for the appellants have stressed before us that in view of the contradictory statements made by PWs 1, 5, 6 and 7, the prosecution story does not deserve to be accepted. According to Sri Rajesh Kumar, when PWs 1, 5 and 6 have been found by the Court below not probable witnesses, the only witness of the occurrence remains PW 7, the wife of the deceased. The learned Counsel for the appellants drew our attention towards the fact that the place of occurrence Morpa River or a bridge over the said river is admittedly at a distance from the village of these witnesses. The PWs 1, 5 and 6 had claimed that they went near the place of occurrence after 5 p.m. hearing the villagers returning from Bazar that Govind has been killed but this fact was not mentioned in the fardbeyan recorded on 1.7.2001. It has been pointed out that even the presence of PW 7 was not disclosed to the IO during the fardbeyan although PWs 5 and 6 have admitted that they had occasion to learn from Sakla Devi PW 7 regarding the involvement of the appellants in the morning of 1.7.2001. Therefore these witnesses are after thought and tutored with sole intention to implicate the appellants in this case. After going through the evidence on record, it is apparent that though PWs 1, 5, 6 and 7 have claimed to be eye witness of the occurrence taking place in the evening of 30.6.2001, they did not claim this fact in the fardbeyan recorded on 1.7.2001. From plain reading of the fardbeyan the informant PW 6 naming all, the appellants taking part in killing of his brother did not mention that the occurrence was seen by PW 7 or they had gone to the place of occurrence last evening. The wife of the deceased herself has admitted during cross-examination that she had informant the above mentioned PWs regarding the incident only in the morning of 1.7.2001. As such there are contradictory statements regarding the presence of witnesses PW 7, PW 1, 5 and 6 at the place of occurrence. The absence of village choukidar Nejamat Ansari as PW also creates reasonable doubts in favour of the appellants.
12. Further more the place of occurrence said to be in the river bed by PW 7 is contradicted by PWs 1, 5, 6 and 8 who found blood stained soil, 100 yards of the river bed near the bridge from where scattered articles belonging to the deceased were recovered. The dead body is admittedly recovered from woods situated at a distance place from the place of occurrence. If PW 7 is believed her husband was attacked in the river bed itself. Therefore there are vital contradictions regarding the place of occurrence and assault taking place upon the deceased. The recovery of the dead body of the deceased, according to PW 8, 2 k.m. away from the place of occurrence also creates reasonable doubt on the prosecution version.
13. Having regard to the above mentioned facts and circumstances where enmity is admitted between the parties, false implication cannot be ruled out. The prosecution witnesses already discussed above found have been contradicting each other on material points. In such circumstances, we find that the conviction of the appellants cannot be sustained.
14. In the result, we find that the prosecution has failed to establish the guilt of the appellants beyond all reasonable doubts. As such, these appeals have got merit in them and deserve to be allowed.
15. Accordingly, these appeals are allowed. The order of conviction and sentence passed by the trial Court are hereby set aside and the appellants are acquitted. The appellant in Criminal Appeal No. 1667 of 2004, namely, Sheo Nandan Sahu is in jail custody, he is directed to be released forthwith, if not wanted in any other case. The appellants in Criminal Appeal No. 1476 of 2004, namely, Raghu Sahu, Annu Sahu and Raiya Mahto @ Bhagat are on bail, are directed to be released from the liabilities of their ball bonds.
Amareshwar Sahay, J.
16. I agree.