( Against the judgment of conviction and order v. THE STATE OF BIHAR

firearms. There were other five persons also, who had surrounded the house and keeping watch from the out side, they were not identified by the informant. The accused persons entered into the female quarters of the house and started looting away cash, jewelleries and other articles, as per the details given in the F.I.R., after entering into different rooms of the house. Appellant Nityanand Singh took out the licensed gun of the informant kept in one of the rooms. The informant raised alarm, on which his son, namely, Baidyanath Singh came in the courtyard, caught hold of accused Nityanand Singh and tried to 4 take away the gun from his hand. However, Nityanand Singh anyhow got himself released from the clutches of Baidyanath Singh and fired at his chest from the licensed gun of the informant. Thereafter, on hearing alarm several other persons as well as Naulakh Sharma, son of the deceased Baidyanath Singh came at the place of occurrence but the accused persons succeeded in fleeing away from the place of occurrence, towards the southern direction. It has been stated in the F.I.R. that there is enmity in between the accused persons and the informant, and one murder case was already pending in between the parties.

3. The accused persons were chargesheeted on completion of the investigation and they were committed for facing trial.

4. The prosecution, in support of the charge framed against the accused persons examined six witnesses. Out of six witnesses four are the family members of the informant. P.W.1 Lal Pari is the wife of Baidyanath Singh, the deceased, who is alleged to have been shot by appellant Nityanand Singh. P.W. 2 Bechari Devi is the wife of Naulakh Sharma( P.W.4). P.W.3 Ramanuj Sharma is also the son of Ramkishun Sharma, who is full brother of the informant Mannu Sharma and P.W.4 Naulakh Singh is the son of the 5 informant and brother of the deceased. The informant Mannu Sharma has not been examined as witness during trial. No reason has been assigned for not examining the informant and also it is not apparent from the evidence of any of the witnesses that at the time of deposition, he was not alive or not in a position to depose in court. So far other two witnesses are concerned, they are two Investigating Officers of the case. One of the Investigating Officer, P.W. 6 Ashok Kumar Singh had investigated the case, inspected the place of occurrence and took all steps essential for investigation. P.W. 5, S.I.Bhuneshwar Singh only submitted charge sheet and arrested some of the accused, who had not been arrested till then.

5. Shri Rana Pratap Singh, learned Senior Counsel, appearing for the appellants in both the appeals has submitted that if the evidence of the prosecution witnesses is analyzed then it is crystal clear that the witnesses have not been able to prove the charge framed against the appellants under Section 396 of the Indian Penal Code. The evidence is also not sufficient to show that the accused persons are responsible for killing one of the persons, namely, Baidyanath Singh. The evidence of P.Ws.3 and 4 has not been believed by the trial court, and the reason has been assigned by the trial 6 court in the impugned judgment. These two witnesses, P.Ws. 3 and 4 have admitted in their evidence that actually they have not seen the occurrence. P.W.3 Ramanuj Sharma has admitted that when he heard the alarm, he came to know that something was happening in the house of Mannu Sharma. He did not go to the place, rather he came at the roof of one Siyaram Singh(not examined) and from there only he witnessed the occurrence and identified the accused persons. The evidence of P.W.3 was not found reliable considering the distance in between the houses of Siyaram Singh and Mannu Sharma, since it was factually not possible to witness the occurrence from the house of Siya Ram Singh. It has come in the evidence of I.O. that there is a road and the house of the informant, being on the other side of the road is intervened by other houses. It was hardly possible for P.W. 3 to see the occurrence fully and identify the accused from the roof of the said house of Siyaram Singh. The evidence of P.Ws.3 was also not found convincing for the reason that P.W.6 the I.O. in his evidence in paragraphs 16 and 17 has stated that P.W. 3 had not made any such statement during investigation. Similar is the evidence of P.W.4. who himself has admitted that when accused persons accosted and entered into the female 7 quarters of his house, he was at the field. Hearing alarm, he came running from the field to his house but he has admitted that the distance from the field to his house is 400 yards and when he reached at his house he could not witness the actual occurrence. P.W.4 in paragraphs 6 and 7 of his evidence has stated that he has made his statement before the police about the identification of the accused but the evidence of P.W. 6 in paragraph 17 indicates that P.W. 4 had not made any statement regarding identification of any of the accused or seeing the occurrence fully, before the police. Considering these facts the trial court did not place reliance on the evidence of P.Ws.3 and 4.

6. So far P.Ws. 1 and 2 are concerned, P.W.1 is the wife of deceased Baidyanath Singh and P.W.2 is the wife of P.W.4 Naulakh Sharma. These two witnesses have admitted that they are pardanasheen ladies and have never come out from the precincts of their house, Whenever they Come out of the house, or go to their parents place they come in doli, which remains fully covered. They have admitted that they do not have any occasions to see the faces of any villagers. In these circumstances, their claim to identify all the accused persons, seems to be quite suspicious. P.W.1 has made contradictory statement 8 in her evidence. At one place she has said that her statement was recorded by the police on the next day of the occurrence and there she disclosed the names of the accused persons. Immediately, in her deposition, she has stated that on account of death of her husband, she lost her senses and she regained her consciousness after ten days(P.W.1,Paragraph 10). In these circumstances, the evidence of P.W. 1 could not be relied upon for the purpose of conviction. Similar is the evidence of P.W.2. She has also not deposed in a way which could raise confidence and be relied upon for the purpose of conviction.

7. It has further been submitted by counsel for the appellants that admittedly all the four witnesses who have been examined on the point of occurrence and the identification of the accused persons are interested witnesses, being family members of the informant and the deceased. In the background of the admitted enmity between all these witnesses and the accused persons, as appears from the evidence in paragraphs 9 and 10 of P.W. 3, it is not safe to rely upon their evidence, specially, in an offence like 396 of the Penal Code. It has also been submitted that one of the lacuna in the prosecution evidence is the non-examination of the 9 Doctor who could have certified that what was the injury suffered by Baidyanath Singh to find whether occurrence took place in the manner as alleged in the prosecution story.

8. It has further been submitted by counsel for the appellant that so far the allegation regarding commission of dacoaity by the accused persons inside the female quarters of the informant is concerned, it is completely falsified from prosecution evidence. It becomes doubtful when the evidence of P.W. 6 the I.O. in paragraphs 13,14 and 15 is considered, in comparison to other interested witnesses. P.W. 6 in his evidence has stated that he reached at the place of occurrence at 4 P.M. and inspected the place of occurrence. In paragraph 13 he has stated that till 5 P.M. none of the witnesses disclosed the names of accused before him. Even, the family members, who claimed to have witnessed the occurrence, were not disclosing the names of accused persons. He came to know about the accused persons after 5 P.M. This silence of prosecution witnesses, on arrival of Investigating Officer for complete one hour, specially when occurrence had taken place at

2.30 in the afternoon, in full view of all the witnesses, makes the subsequent disclosure of accused persons’ name doubtful. P.W.6 has also 10 stated in his deposition in paragraph 14 that he did not find any mark of violence in any room, except one broken lock of one box in a room, no marks of shots made from firearm was found on the walls or any pellet was found at the place of occurrence. Attention of the Court was also drawn to the evidence of P.W.6 in paragraph 15, that no licence of the gun which is alleged to have been taken away by the accused was produced before him by the informant or any family members. All these circumstances raise doubt against the prosecution story in the F.I.R., specially, when there is admitted enmity, disclosed in the F.I.R. and also in the evidence of P.W.3.

9. Shri Ashwini Kumar Sinha, counsel for the State has tried to defend the evidence of the prosecution witnesses but there was no scope for it as none of the witnesses have deposed in the manner which could have made out a case for conviction of the appellants.

10. In the facts and circumstances, we do not find any reason that the conviction of these appellants as recorded by the trial court and order of sentence should be maintained. Accordingly, the judgment of the trial court and the sentence are set aside and the appellants are acquitted. 11

11. Both the appeals are allowed. Appellant Nityanand Singh( in Cr. Appeal No. 661 of 2004(D.B.) is in custody. He is directed to be released forthwith, if he is not required in connection with any other case. The appellants of Cr. Appeal No. 544 of 2004, except appellant no. 2, Bakhora Mian, whose appeal stands abated on account of his death, who are on bail, are discharged from the liabilities of their respective bonds. ( Mridula Mishra, J.) ( Dharnidhar Jha, J.) Patna High Court The 26th November, 2010 Kanth/N.A.F.R.