Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.427 of 1990 {Against the judgment of conviction and order of sentence dated 23.8.1990 passed by Sri Additional Chiranji Singh, Sessions Judge, Saran at Chapra in Sessions Trial No. 355 of 1986.} learned IVth =========================================================== 1. Rameshwar Thakur 2. Baidyanath Thakur (since dead) 3. Deen Dayal Thakur 4. Dina Nath Thakur (Since dead) All 1 to 4 are sons of Sakal Thakur 5. Ram Pravesh Thakur son of Nageshwar Thakur, All are resident of village- Sripur, P.S. Baniapur, District- Saran Versus .... .... Appellant/s The State of Bihar. .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Vishwanath Prasad Sinha, Sr. Adv. Mr. Anil Kumar Singh, Adv. Mr. Sanjay Kumar Singh, Adv. For the Respondent/s : Mr. Ajay Mishra, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT and (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Date: 05-07-2013 In pursuance of order dated 4.2.2013, the Superintendent of Police, Saran has submitted a report vide Letter No. 279 dated 5.5.2013 at Flag “A” disclosing therein that Baidyanath Thakur (appellant no. 2) died on 15.1.1996 and Dina Nath Thakur (appellant no. 4) died on 12.1.2006. In this view of the matter, the appeal has been abated against them. Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 2/23 2. This appeal has been preferred against the judgment of conviction and order of sentence dated 23.8.1990 passed by learned IVth Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 355 of 1986 by which the appellants have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/149 IPC, rigorous imprisonment for seven years under Section 201 IPC and both the sentences have been directed to run concurrently and accused Uma Shankar Thakur and Birendra Thakur have been acquitted for the charge under Section 302/149 and 201 IPC. 3. The prosecution case, in brief, is that the informant Shankar Singh (P.W. 1) has been living in her Sasural, village Shripur for the last 13 years. His father-in-law Ramashish Thakur died on 16.3.1983. He (P.W. 1) fixed the marriage of his sister-in-law (Sonawali Kumari) to Adalat Rai, son of Surat Rai ( P.W. 5)and Tilak Ceremony was held on 10.6.1985. The patidars of his father-in-law, late Ramashish Thakur do not like this marriage. On 11.6.1995 at about 8.30 pm. the informant returned to his sasural house from Dhohbal market. In the meantime, all the appellants entered into his house and started to assault his mother-in-law Sheo Kalo Kuar (deceased). He intervened, thereafter the appellant Rameshwar Thakur assaulted him with lathi and Rampravesh Thakur (appellant no. 5) wanted to give bhala blow but the informant caught hold of Bhola
Legal Reasoning
Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 3/23 which was broken. In the meantime, appellants Baijnath Thakur, Dindayal Thakur and Dinanath Thakur carried away the deceased Sheo Kalo Kuar somewhere. The informant apprehended that she would be killed. Due to fear he rushed and reached at the police station at 10 pm.. He did not know the whereabouts of his wife- Umarawati Devi (P.W. 2) and his sister-in-law (Sonawali Kumari, deceased) and his three children. He also did not know as to how much property was looted by the appellants. 4. On the basis of written report (Ext. 11) Baniyapur P. S. Case No. 110 of 1985 was instituted for the offence punishable under Sections 147, 148, 149,448, 364, 365, 323, 324 IPC on 12.6.1985 at 8.30 a.m. After investigation charge-sheet was submitted against the appellants. Later on, when the dead body of Sonawali Kumari and Sheo Kalo Kuar were recovered, the offence under Sections 302 and 201 IPC were added to the formal FIR of the case. After investigation charge-sheet was submitted against the seven accused persons (appellants) and Umashankar Singh and Birendra Singh for the offence punishable under Sections 302 and 201 IPC. Cognizance was taken and the case was committed to the court of session. The charges were framed against the appellants and Uma Shanakr Singh and Birendra Singh for the offence punishable under Section 302 and 201 IPC to which they denied and claimed to be Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 4/23 tried. Their defence is of false implication. After trial the appellants have been convicted and sentenced as aforesaid and the accused Uma Shankar Thakur and Birendra Thakur have been acquitted. 5. Now, this court is required to reappraise the evidence to consider as to whether the prosecution has been able to substantiate its charge against the appellants beyond shadow of reasonable doubt. 6. The prosecution has examined following witnesses to prove its charge:- P.W. 1 Shankar Singh, P.W. 2 Umrawati Devi, P.W. 3 Phulmati Devi, P. W. 4 Harihar Sah, P.W. 5 Surat Singh, P.W. 6 Dr. Gauri Shankar Prasad, P.W. 7 Dr. Rabindra Nath Rai, P.W. 8 Jagdish Narain Prasad, P.W. 9 Dr. Sidheshwar Prasad, P.W. 9- a, Subhash Kuar, P. W. 10 Rajwali Rai and P.W. 11 Louis Jacov. 7. P. W. 1 is the informant of this case and brother-in- law of deceased, Sonawali Devi and son-in-law of Sheo Kalo Kuar. He has stated that his father-in-law had no son but only two daughters:- Umarawati Devi (P.W. 2) and the deceased Sonawali, as such he has been living in Sasural. He has further stated that the occurrence took place on 11.6.1985 at about 8 p.m.. At that time he had returned from Dhobal market. The marriage of his sister-in-law Sonabali Devi was fixed with the son of Suraj Singh (P.W. 5) and Tilak ceremony had also been held on 11.6.1985 in which women of neighbour were singing in the courtyard. His mother-in-law was also Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 5/23 present in the court yard. In the meantime, the appellants entered into the courtyard. Ram Pravesh was armed with Bhala and others were armed with Lathi and stick. They began to assault his mother-in-law Sheo Kalo Kuar. He went to her rescue; thereafter Rameshwar Rai gave him lathi blow. They pushed cloth in the mouth of his mother-in- law and three of them took her away. Rameshwar and Rampravesh surrounded the informant. At the time of occurrence lantern was lighting in the courtyard. Bhala blow was given by Rampravesh Thakur which was defused by the informant and bhala was broken. The iron portion of Bhala remained in the hand of the informant. At that time Govind Rai, Surendra Rai and Nagendra Rai of village Rajauli were present (they have not been examined). Birendra and
Legal Reasoning
Uma Shankar Rai of village Shripur were on the darwaja. He has further stated that he escaped from there and went to Baniyapur police station and he gave his written information in the police station, he returned to his Sasural at village Shripur in the morning and came to know that Sonabawali and Sheo Kalo Kuar were taken away and killed by the appellants. He has further stated that his wife (P.W. 2, Umarabati Devi) told him that she and Sonabali (deceased) were returning after attending the call of nature. In the meantime, Rampravesh Thakur and other accused assaulted them and they dragged Sonabali to the bridge and assaulted her. He has further stated Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 6/23 that when he had gone to the police station, both these women had gone to attend the natural call. The dead body of mother-in-law (Sheo Kalo Kuar) was found in the tank at about 8-9 a.m. on the next day and the dead body of Sonabali was recovered after 3 days from a well at village Samarpura. He has further stated that there was dispute between his mother-in-law and the accused prior to the occurrence and criminal cases were going on between both the parties. Accused had a forged deed. He has further stated that his treatment was made. He has identified all the accused. In his cross-examination, he has stated that 8 to 10 years ago he was married since then he had been living with his mother-in-law and father-in-law and looking after their cultivation. The accused used to create hindrance. The accused are patidars of his father-in-law. They had also cultivated 31 katha of land but they did not give usufruct, although they had only half share. He has further stated that prior to the occurrence a criminal case regarding the theft of crop had been lodged against the appellants for harvesting the crop of five kathas of land. He did not remember as to whether he was a witness in that case or not. He has also stated the police submitted a final report. He has five sisters who are married in village Bhikhampur with Gautam, Surat Singh (P.W. 5) in the village Rajauli, Tabal Singh of village Nawada, Vishwanath Thakur of village Rampur and Brijbihari Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 7/23 Tiwari of village Pakari. Surat Singh (P.W. 5) is also known as Surat Rai. In paragraph 18, he has stated that Surat Singh is not a witness of this case. He came to his house on the next day. He has further stated that his wife (P.W. 2) had also head injury for which she was hospitalized. The marriage of Sonawali was fixed with Adalat Rai, the son of Surat Rai (P.W.5). After the occurrence, his wife has not executed any deed of gift in favour of Adalat Singh. Again he says that the deed of gift was executed after one month of the occurrence which was witnessed by him. He has further stated in paragraph 20 that deed of gift had been executed so that Ram Surat Rai (P.W. 5) would help in this litigation. The deed of gift is with regard to 2 bigaha, 7 dhur of land. His father-in-law had more than four bigahas of land. In that deed it has been mentioned that his father-in-law died leaving behind only one issue who is his wife (P.W. 2). Again he says that his father-in-law died leaving behind two daughters; elder is his wife and second was the deceased Sonawali. In paragraph 22 he has stated that he cannot say that as to whether Sonabali had performed the court marriage or not and any document regarding marriage was executed or not. The appellants/accused were raising objection against the court marriage. They did not like the marriage. He has denied the suggestion that the accused wanted the marriage to be performed according to vaidik rituals. In paragraph 29, he has stated before the Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 8/23 Court that Birendra Thakur and Umashankar Thakur were not involved in this occurrence. He has been cross-examined at great length. In paragraph 43, he has stated that at the time of submitting report he had no knowledge about the involvement of accused Birendra and Umashankar in the present case. It appears that there has been much deviation and contradiction in the statement of this witness from his written report submitted in the police station. 8. P. W. 2 is the wife of P.W. 1 . She has stated that her father Ramashish Thakur had two daughters; she and Sonabali (deceased). Rameshwar Thakur and other accused are patidars of her father. Sonabali was not married. The marriage was fixed with Adalat Rai, but the accused were not in favour of that marriage. Her mother lodged a case against the accused as they had created a forged sale deed after the death of her father. On the date of occurrence at 8 p.m. she and her sister Sonabali had gone near the canal for attending the call of nature. When they were returning, she had torch and she saw the appellants in the light of torch. The appellants were kidnapping her mother after pushing cloth in her mouth. When she flashed a light they thrashed her mother there and began to assault her and her sister. They dragged Sonabali to the bridge and also dragged her mother. She hid herself in a hut. Due to assault she got injury on head and right shoulder and other parts of body. Again she has stated that she hid Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 9/23 herself in the house of Baijnath Sah (not examined) and returned to her house at 4 a.m., when her husband (P.W. 1) came there. The dead body of her mother was recovered from the pond near the temple and the dead body of her sister was recovered from a well in the village Samarpur. The police had taken her statement. Her treatment was made by the doctor. She has identified the appellants. In her cross-examination, she has stated that after the marriage she had been mostly living in her naihar. On the date of occurrence she had three children aged about 5 years, 2 years and 1 year. Her father had 5 bigaha of land and had not executed any sale deed. The accused had a forged sale deed which came to her notice later on, for which a case has been lodged. The cultivation of the land of her father was done by her husband. In the life time of her father there was no litigation with the appellants. After his death, the accused were threatening to kill her. The prosecution party did not assault any one. She has further stated that her mother had brought Sonabali at Chapra court for her court marriage as the accused - appellants wanted to get her married, but her mother did not like as she apprehended the sale of Sonabali by the appellants. In paragraph 14 she has stated that prior to one year of the occurrence it was decided that there will be court marriage of Sonabali with Adalat Rai. The court marriage was performed. After the marriage Sonabali Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 10/23 remained in her naihar but Adalat did not remain there continuously. Adalat was also living with her. There was joint cultivation of the lands of both the sisters. She has three sister-in-laws who are married at village Rampur, Bhikhampur and they are alive. The name of daughters of her father was not mutated after his death. She had also been cross-examined at great length. She has stated in paragraph 23 that she met her husband at the house of Gond at 4 a.m. and she returned to her house with him at that time her three daughters were present there. No elder person was with them. In paragraph 29, she has stated that the police officer met her when the dead body of her mother was recovered but did not ask her anything. She does not remember when her statement was taken by the police. In paragraph 30, she has stated that she remained in hospital for 15-16 days. The police officer came to the hospital after two days but he did not ask her anything in the hospital. In paragraph 35, she has stated that she and her mother executed two sale deeds on 4.10.1983 in favour of Jagarnath Thakur. Jagarnath Thakur is the son of accused Umashankar Thakur. 9. P. W. 3 Phulmati Devi has stated that at the time of occurrence she was in her house which is ten laggi west from the canal. Sonabali and Umarawati raised alarm, she went there and saw that the appellants were assaulting Sonabali. They also assaulted Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 11/23 Umarawati (P.W. 2) with lathi. After assault they took away Sonabali towards eastern side. She saw the occurrence in the light of petromax and fled to her house due to fear. She has denied the suggestion that she lives in a hut outside the village as Sudarshan Thakur has brought and kept her and she has also denied the suggestion that she never resided in the house of Chhinawan Thakur and she also denied that she belongs to caste of Chamar. In paragraph 14 she has stated that no one assaulted her. Sonabali was dragged towards east. She did not see Umarawati went in which direction. She had no talk with Umarawati in the night. She did not go to the house of Umarawati to inform about the occurrence. She went to her house and slept. In the next day, Umarawati came to her house at about 8-9 a.m. she was only weeping. Neither of them talked. Umarawati returned to her house. She did not go to her house. There was no meeting with Shankar Rai. She has stated that she neither told the police officer about the assault of Umarawati nor told about the presence of Umarawati at the place of occurrence. In paragraph 19, she has stated that she does not remember the name of her grandfather. She has denied the suggestion of the defence that she was a labour of Shankar Rai (informant) as such she has deposed a lie. 10. P. W. 4 has been tendered. 11. P. W. 5 has stated that informant is his brother-in- Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 12/23 law (Sala). On 12.6.1985 at 8.30 a.m. the police officer seized broken lathi containing bhala and prepared the seizure list which was witnessed by him. The blood stained soil was also seized which was witnessed by him on the same date at 9 a.m. near Banana orchard. Two pairs of old hawai chappal, black colour orhani and a piece of cloth were seized and seizure list was prepared which was witnessed by him. On the same day at 9.15 a.m. on the stairs of the tank two pieces of plastic bangles were recovered. On 14.6.1985 at 5.30 p.m. the dead body of Sonali was seized and the inquest report was prepared, a piece of stone was also seized near the well. On 12.6.1985 at 9.30 a.m. the dead body of Sheo Kalo Kuar was recovered and the inquest report was prepared. He has identified his signature on the seizure list/inquest report which has been marked Ext. 1 to 1/6. In his cross-examination, he has admitted that his son Adalat Rai never resides in Shripur. He went to the village Shripur and returned. He has stated in paragraph 11 that he came to Chapra Court taking Sonabali (deceased) with her mother (Sheo Kalo Kuar- deceased) and his son Adalat for performing marriage. He has further stated that in the Court Sonabali sworn an affidavit that she married Adalat Rai and his son Adalat Rai also sworn an affidavit that she was marrying Sonabali. He has also stated that accused did not like the marriage by the affidavit, but later on they allowed the marriage by Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 13/23 affidavit with Adalat (son of P.W. 5). In paragraph 15 he has stated that after one month of the occurrence, P.W. 2 the wife of Shankar Singh (P.W. 1) has executed a deed of gift in favour of his son Adalat Rai with regard to three bigahas of land and building and he is in possession of the land. He does not live in Shripur. Later on, in paragraph 17 he has further stated that he was not present in village Shripur on the date of occurrence. He reached there in the morning at 6 a.m., prior to that he went to the police station at 10 p.m. where he met with Shankar Singh as he got information about the occurrence at 8.30 p.m. He has further stated that the statement of Shankar Singh was recorded by the Officer-in-Charge and the Officer-in-Charge told that he would go to the place of occurrence in the morning as Uma Devi, Minister had come there. The Officer-in-Charge came at place of occurrence/ village at 8 a.m.. Co-villager of Shankar Singh came at his darwaja. Materials were seized at that place. The villagers came but no one became ready to narrate about the occurrence to the police officer. He moved from that village and again reached to the village Shripur on 14. 6. 1985. He has denied the suggestion of the defence that he is not the brother-in-law of P.W. 1 and he has got deed of gift executed in his favour to save Shankar Singh (P.W. 1). He has also denied that Shankar Singh (P.W. 1) has committed murder of the deceased. Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 14/23 12. P. W. 6, who was Civil Assistant Surgeon at Sadar Hospital Chapra, held post-mortem examination on the dead body of Sonabali Kumari aged about 20 years on 15.6.1985 and found the following ante-mortem injuries:- (i) The whole body was swellen due to decomposition. The eyes & tongue were protruded and the skin was peeled off. (ii) One lacerated wound measuring 3” x ¼” x ¼” on the back of the head. (iii) One swelling on the middle finger. On dissection and on removing the skin of the head, the scalp bone was found with linear fracture under external injury and there was extra vassation of blood partly clotted. Injuries have been caused by hard and blunt substance. Death caused by shock and haemorrhage as a result of injury no. (ii). The post-mortem report has been marked as Ext. 2. Time elapsed since death about 96 hours. 13. P. W. 7 has examined Smt. Umarawati Devi (P.W. 2) on 12.6.1985 at 6.40 P.M. and found the following injuries:- (i) Huge swelling around the right shoulder joint more marked on the clavicular region of the chest with fracture of the clavicle on the lateral end. (ii) Lacerated wound 1” x 1/3” x ¼” on the left parietal Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 15/23 region of the head. (iii) Swelling 1 ½” x 1 ¼” on the middle of the head. (iv) Abrasion ¼” x 1/5” on the right arm just near the elbow joint. (v) Abrasion 4” x 1 ¼” on the upper part of the right arm on the deltoid region. (vi) Swelling and abrasion 6” x 2” on the left side of the buttock. Injury No. 1 is grievous and rest are simple in nature. Injuries were caused by hard blunt substance. The age of these injuries is within 22 hours. P. W. 7 on the same date and about same time examined Shankar Singh (P.W. 1) and found the following injuries on his person (i) Swelling & abrasion 1 ½” x 1 on the back of the left fore arm near the elbow joint. (ii) Swelling and abrasion 2” x 1 ½” on the left forearm near the wrist joint. Both the injuries were caused by hard and blunt substance and the age of injuries about 22 hours. The injury reports have been marked as Ext. 3 and 3/1. In his cross-examination, he has stated that both the injured were referred to him by the police and injury reports are not collusive. Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 16/23 14. P. W. 8 is the investigating officer who was posted as Junior Sub-Inspector, Baniyapur Police Station. On the written application Baniyapur P. S. Case No. 110 of 1985 was instituted on 12.6.1985, thereafter, he left for the place of occurrence at 8.05 a.m. and reached at the place of occurrence at 8.30 a.m. and took the statement of P.W.1 and his wife (P.W. 2), inspected the place of occurrence. He got recovered the dead body of Shivkalo Kuar hidden in the water after putting in a bag. Inquest report was prepared. Seizure of incriminating articles were made. The dead body was sent for post-mortem examination which was identified as Shivkalo Kuar. On 14.6.1985 he reached at village Gamaria, P.S. Hisuapur and got recovered a dead body from the well which was identified that of Sonabali, which was hidden in a well after being sunk with weight of stone. The inquest report was prepared which has been identified as Ext. 6/1. The dead body was sent to Sadar Hospital, Chapra for post- mortem examination. He took the statement of witnesses and handed over the charge of the investigation to another Officer-in-Charge, Ram Sagar Singh. In his cross-examination, he has stated that he did not know as to whether at 10 p.m. on 11.6.1985 the informant has gone to the police for lodging a case or not as there is no entry in the station diary. It is not a fact that cognizable offence is not registered in the police Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 17/23 station at the time of giving information. The written information was given to him on 12.6.1985 at 8 a.m. The informant had gone to the police station alone, at that time he did not carefully examine the person of the informant nor prepared the injury report, rather he proceeded for the place of occurrence and took the statement of the informant there. He has stated that he has not taken the statement of Harihar and Hareram Sah nor has mentioned the distance of their house with the place of occurrence. The place of occurrence was inspected by him at the instance of the informant. After taking the statement of informant he took the statement of his wife- P.W. 2 and the dead body of Sheo Kalo had been found at 9.30 a.m. Inquest report (Ext. 6) was prepared. In paragraph 30, he has stated that the distance of Baniyapur Police Station with Primary Health Centre Baniyapur is about 200 yards. The injury reports regarding the injury of Shankar Singh (P.W. 1) and his wife (P.W 2) were recovered from Baniyapur Hospital on 20.6.1985. In paragraph 38, he has stated that he did not find any material which shows that the marriage was to be performed in the house of the informant. He could not take the statement of the women alleged to have been singing on the occasion of the marriage as none of them turned before him. In paragraph 40, he has stated that no child was found in the house of Shankar Singh as there is no mention of such fact in the case-diary. He has stated in Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 18/23 paragraph 41 that the informant P. W. 1 did not state before him that the accused took away Sheo Kalo Kuar and accused Ram Pravesh and Rameshwar confined him. P. W. 1 did not say before him that at the time of occurrence lantern was lighting. He did not seize any lantern. In paragraph 42, he has stated that Umarawati (P.W. 2) did not state before him that after taking torch she had gone to attend the natural call and she identified the accused in the flash of torch. P. W. 2 did not tell him that the accused assaulted her. 15. P. W. 9 has stated that while he was posted as Civil Assistant Surgeon at Sadar Hospital, Chapra, he held the post-mortem examination on the dead body of Sheo Kalo aged about 60 years on 13.6.1985 at 12.30 p.m. and found the following:- (i) The dead body was in an advanced stage of decomposition in form of foul smell, bloating of the abdomen, labia majova and formation of bulae on these parts of the body. (ii) Both the eyes were closed with partly grey & black hairs on the scalp of the head. Mouth open with tongue protruded outside the mouth cavity. On dissection the following ante-mortem injuries were found:- (i) Lacerated wound 2” x ¾ x bone deep on the fore head, right side with fracture of the frontal bone of the head and formation Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 19/23 of subdural haematoma on the brain surface. (ii) Lacerated wound 1” x ½” x bone deep on the forehead left side with fracture of frontal bone on head of the left side. (iii) Incised wound 7” x 3/4" x muscle deep on the right side Luna aspect. There was great extra-vassation of blood in the tissues in and around the injuries described above. Cause of death-due to above injuries. Post mortem report has been marked Ext. 7. 16. P. W. 9 –A Subash Kuar is a medical practitioner. He has stated that he has written the injury report in the night of 11.6.1985 at the instance of P. W. 1. 17. P. W. 10 Rajwali Rai is a formal witness who has proved the plaint of Title Suit No. 123 of 1983. 18. P. W. 11 is the police officer who has proved the report regarding material which were seized and deposited in Malkhana. He has stated that articles were destroyed due to rain water. In his cross-examination, he has stated that the list of articles has been prepared from the register of Malkhana. 19. Learned counsel for the appellants has submitted that there are 16 witnesses in the charge-sheet submitted by the police but out of them nine witnesses, namely, Sarswati Devi, Ganesh Singh, Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 20/23 Dharm Nath Kuer, Constable Kaildeo Singh, Constable Shiv Narain, Shyam Bahadur Raut, Ram Janam Raut, Ram Shagar Singh and Nagendra Prasad Singh were not examined and there has been no explanation for their non-examination. He has further contended that it appears that the prosecution has withheld the truth from the Court. Their examination was essential for unfolding the truth, but the prosecution has suppressed the material evidence. The prosecution has also suppressed the so-called affidavit of Sonabali and Adalat about their so-called marriage. P.W. 2 Umarawati has stated in her evidence that she was in the hospital but neither bed-head ticket of the hospital nor any other documents showing her admission in the hospital has been produced by the prosecution in the Court. The prosecution has not examined any independent witness residing near the place of occurrence and there is no explanation for it. He has also submitted that there is no eye witness of the occurrence on the point of alleged killing of the deceased Sheo Kalo Kuar and Sonabali. The informant (P.W. 1) and his wife (P.W. 2) are the persons to be benefited by the death of the deceased Sheo Kalo Kuar and Sonabali and after their death they became the absolute owner of the property left by Ramashish Thakur, the husband of Sheo Kalo Kuar (deceased) and father of Sonabali (deceased). The appellants were no way going to be gainer by the death of the aforesaid two deceased. The prosecution Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 21/23 case is not fit to be believed. 20. Learned counsel for the State has submitted that learned trial court has considered the prosecution evidence carefully and has found the evidence trustworthy and has rightly relied upon them. No interference by this Court is required. 21. The death of Sonabali Kumari and her mother Sheo Kalo Kuar has not been disputed by the appellants. It appears from the evidence of P.W. 1 and P.W. 2 that P.W. 1 was married to Umarawati (P.W. 2), the daughter of Ramashish Thakur. His father- in-law Ramashish Thakur and his wife Sheo Kalo Kuar had only two daughters, namely, Umarawati Devi (P.W. 2) and Sonabali (deceased). P.W. 1 has stated that the marriage of Sonabali was fixed with Adalat Rai, son of Surat Singh (P. W. 5). The tilak ceremony had already been performed on 11.6.1995. On the date of occurrence, women from neighbour had come to sing in the courtyard of P.W. 1 and his mother-in-law Sheo Kalo Kuar was also present in the courtyard. P.W. 8 has stated that P.W. 1 has not made such statement before him nor any one of such women has been produced before investigating officer nor in the court. P. W. 2 has stated that she and Sonawali (deceased) had gone to attend the call of nature and the torch was in her hand. She (P.W. 2) flashed the torch and saw the appellants in the flash of light but the Investigating Officer has stated Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 22/23 that neither lantern nor the torch was shown to him. He has stated in paragraph 42 that P.W. 2 has not made such statement that she had gone to attend the call of nature by taking torch and in the flash of torch she has identified the appellants in the night. The source of light is essential for identification of the accused. According to the prosecution, the appellants are Gotia (Patidars) of Ramashish Thakur, the husband and father of Shivkalo Kuer and Sonabali respectively, as such it is not fit to be believed that known persons will go to commit the offence without hiding their face. There is no other witness. P. W. 3 Phulwati Devi has stated that she had seen the accused assaulting two sisters Sonabali and Umarawati in the light of patromax but no source of light has been produced before the Investigating Officer. P. W. 1 has stated that at the time of occurrence in the courtyard women had assembled to sing song but no women had been examined by the Investigating Officer nor any woman had deposed in the court. The investigating officer (P.W. 8) has stated in his cross-examination that he did not find any material in the house of the informant which could show that marriage was to be performed in the house. There is no eye witness to the occurrence to show as to who had caused the death of Sonabali and Sheo Kalo Kuar. On the point of occurrence the evidence of P.Ws. 1, 2 and 3 are contradictory. Their evidence is full of contradictions and does not inspire confidence as such their Patna High Court CR. APP (DB) No.427 of 1990 dt.05-07-2013 23/23 evidence is not fit to be relied upon. The defence has been able to create doubt against the prosecution case. 22. Considering the facts and circumstances, it appears that the prosecution has not been able to substantiate its charge beyond shadow of reasonable doubt. The appellants are entitled to get the benefit of doubt. The impugned judgment of conviction and sentence is set aside. The appellants are acquitted of the charge by giving them the benefit of doubt. They are discharged from the liabilities of their bail bonds.
Decision
23. In the result, this appeal is allowed. (Shyam Kishore Sharma, J) Kanchan/- (Amaresh Kumar Lal, J)