Baiju Ram @ Baija Ram vs The State of Bihar

M.L. Visa, J.—Baiju Ram @ Baija Ram, the sole Appellant in this appeal before us, is aggrieved by the judgment and order dated 14.09.1987 passed by lllrd Additional Sessions Judge, Saharsa in Sessions Trial No. 51 of 1985 convicting-and sentencing him to undergo rigorous imprisonment for life u/s 396, Indian Penal Cede.

Tfie case of prosecution, Jn short, is tttat informant Upendra Yadav (P.W. 5) on 01.02.1984 at about 4 P.M. returned to his house from village-Barnatha after singing Bhajan (devotional songs). As he was tired 80, without taking meal, he went to sleep. His lather Khikhar Yadav (P.W.2), his cous-ins Narayan Yadav (P.W.1) and Raj Kishore Yadav (P.W. 4) and his maternal uncle Vidyanand Yadav (P.W. 3) were sleeping at his Darwaza. At about 8-9 P.M., wife of Wormant came to him and asked for meal which he refused. Sometimes thereafter, while he was awaken, five to six unknown -persons entered his courtyard and they gashed their torch lights. When he enquired who was flashing torch lights, those persons started wielding lathis and the in-itormant warded ''off their lathis with his left ptond-and he also picked up a lathi which kept beside him and started wielding the lathi. Wife of informant was rescuing him from the assault. In the meantime, some other miscreants came there and they enquired from informant about Fauji and the informant replied that he had gone to Saharsa. Informant asked the miscreants to take over the articles but spare him but inspite of it they continued wielding lathis and inflicted injuries by a sharp edged weapon and lathi to his wife who, after becoming unconscious, fell down. The miscreants caught hold of informant and asked him to show them the house of Fauji and, thereafter, he showed them the house of Fauji and at that time, the door of the house of Fauji was opened and some miscreants entered the house of Fauji. In the meantime, villagers reached there on hearing hulla and they also started raising hulla on which the miscreants, who were about fifteen to twenty in number, fled away. Among the miscreants, informant identified the Appellant and two others, namely, Kutwa Mehta and Warisa Mehta. The miscreants took away one box containing a cash amount of Rs. 200/- and some cloths. When the informant came running to his Darwaza, he found that hands of his family members, who were sleeping there, were tied up and on enquiry, they disclosed that miscreants had tied up their hands and they had enquired from them also about Fauji. Informant and others chased the miscreants for some distance and, thereafter, they returned back and on his return, informant found that his wife was lying in pool of blood and she was dead. While fleeing away, the miscreants had made two sounds but informant could not follow the nature of those sounds. The Fardbayan of informant was recorded by Sub-Inspector Dilip Kumar Sinha (P.W.7) on 02.02.1984-at 1.30 P.M. at his residence.

On the basis of Fardbayan of informant, a case u/s 396, Indian Penal Code against Appellant, Kutwa Mehta and Warisa Mehta and fifteen to sixteen unknown persons was registered. The po lice, after investigation, submitted chargesheet against Appellant only u/s 396, Indian Penal Code and the other two co-accused persons, namely, Kutwa Mehta and Warisa Mehta named in Fardbayan and formal first information report were not sent up for trial. After taking cognizance, the case was committed to the Court of Session where charge u/s 396, Indian Penal Code was framed against Appellant who, after trial, was found guilty arid convicted and sentenced as indicated above. The case of Appellant, as it appears from the trend of cross-examination of witnesses, is of complete denial of the charge and his false implication on account of enmity.

Altogether seven witnesses have been examined on behalf of the prosecution. Upendra Yadav (P.W. 5) is informant. Diiip Kumar Sinha (P.W. 7) is the Investigating Officer. Narayan Yadav (P.W. 1), Khikhar Yadav (P.W. 2), Vidyan and Yadav (P.W. 3) are said to joe eye witnesses to the occurrence. Raj Kishore Yadav (P.W. 4) and Raghubir Prasad Yadav (P.W. 6) are tendered witnesses.

Upendra Yadav (P.W.5), informant, in his evidence, has said that on the date of occurrence, he returned to his house from village-Bharnatha after singing Bhajan and he went to sleep and at about 10 P.M., he saw that five to six persons entered his courtyard and flashed torch lights and when he enquired from them, who they were, they started wielding a lathi an,d he then tried to stop the assault by his left hand and, thereafter, he also started wielding lathi and the dacoits then asked from him where Faun was and he replied that he had gone to Saharsa but the dacoits. continued their assault on him and, thereafter, they caught held of him and took him to the house of Fauji where they entered the house of Fauji and he, thereafter, came running to his Darwaza where he found five to six dacoits and also found some members of his family tied up and when he came in his courtyard, the dacoits started again assaulting him and after receiving assault by lathi on his head, he became unconscious. He has further said that when his wife came to rescue him, she was also injured and dacoits were 15-16 in number among whom he identified the Appellant. Kutwa Mehta, Warisa Lal Mehta, Nathan Kahar, Pawan Mehta and Sahdeo Yadav in his courtyard and he had identified them In the light of torch flashed by dacoits. He has further said that when villagers assembled, the dacoits, after firing, fled away and they also took away one box containing a cash amount of Rs. 200/-, cloths etc. from his house and when on next day, he regained consciousness, his Fardbayan was recorded by police and his wife had already died on the night of occurrence on account of assault and he was sent to Madhepura Hospital. In cross-examination, he has admitted that on the next day at about 8-9 A.M.. he regained consciousness and then he knew that his wife had died. He has admitted that house of Appellant is adjacent to his house. Narayan Yadav (P.W. 1) had said that at the time of occurrence he, alongwitn P. Ws. 2 to 4, was sleeping in his house when 20 to 25 persons came there and they flashed their torches and asked him and others to cover their faces with bed sheets and their hands and feet were tied up and five dacoits remained there and remaining went inside the house. He has said that among dacoits, he identified the Appellant alongwith Kutwa Mehta, Wansa Lal Mehta, Pawan Mehta, Sahdeo Azad and Nathan Kahar and he had identified them in the light of lantern and these persons had entered his house. He has lu-ther said that dacoits were searching Fauji who is the brother of informant, and wasift army at that time. Although in those dajys he had come to his village but at the time of occurrence, he had gone to Madhepus. He

About the manner of occurrence, we find that the informant, in his Fardbayan, has stated that he was assaulted by dacoits and when his wife came for his rescue, she was also assaulted by dacoits with a pointed weapon and lathi and she became uncon-sciou; and fell down and, thereafter, dacoits caught hold of him and took him with them for showing them the house of Fauji which he did and, thereafter, the dacoits entered the house of Fauji and when villagers, on bulla, reached there, the dacoits fled away. In his evidence, he has said that after entering his house, the dacoits started wielding lathis which he tried to ward off with his left hand and he also started wielding lathi and, thereafter, dacoits caught hold of him and took him to the house of Fauji where they left him and entered the house of Fauji and he then came running to his Darwaza where he found five to six dacoits and when he came in his courtyard, dacoits started assaulting him and he received injury on his head and he became unconscious. About his wife, he has said, that when she came for his rescue, she was also assaulted and at that time among the dacoits, he indentified the Appellant alongwith Kutwa Mehta, Warisa Lal Mehta, Pawan Mehta, Sahdeo Azad and Nathan Kahar. In his Fardbayan, he has nowhere said that he became unconscious after infliction of injury on him. In his evidence, he has nowhere stated that his wife was assaulted by any sharp pointed weapon as stated by him in his Fardbayan. In his Fardbayan, he has said that he and other witnesses chased the dacoits for sorne distance and, thereafter, they came back but, in his evidence, he has said that on the next day at about 8-9 A.M., he regained consciousness and police reached his house at about 12 O''clock in the noon He has further said that he was sent to Madhepura Hospital for his treatment hi neither there is any injury report nor any doctor has been examined to support the case of informant that he had received any injury and had gone to hospital for his treatment. The Fardbayan shows that it was recorded on 02.02.1984 at about 1.30 P.M. at the house of informant whereas the occurrence is said to have taken place in the night of 8-9 P.M. on 01.02.1984. Theft is no explanation that why the information of occurrence was not given to Police Station when the Police Station, as per formal first information report, is at a distance of fifteen kilometres from the house of informant. The informant, in his evidence, has said that after regaining consciousness on the next day at about 8-9 A.M., he remained in his house till the arrival of police at his house. The Investigating Officer, in his evidence, has said that after receipt of informant (sic- information ?), he had gone to the house of informant but he has not made it clear that from whom he received me information about the occurrence.

In the Fardbayan as well as in his evidence, the informant has stated that dacoits were searching for Fauji and compelled him to show the house of Fauji and he took them to the house of Fauji where dacoits entered the house of Fauji. The Court below has observed that because the factum of dacoity in the house of informant as well as in the house of Fauji has not been challenged, therefore, it has held that the case of prosecution on the point of dacoity in the house of informant and fauji is proved but we find that when Raghubir Prasad Yadav (P.W. 6), who is also known as Fauji, as per his admission, was produced as witness, he was tendered and no where, in his evidence, he has said that any dacoity was committed in his house.

Here, we may observe that the fardbayan of informant, which in para-13 of judgment of Court below, has been described as Exhibit-1, in fact, has not been "marked as such and from the evidence of P.W. 7 although it appears that he formally proved the Fardbayan but in his deposition, it is not mentioned that it was marked (sic) and in our opinion, it appears that iladvertently, it could not be mentioned as pitch while recording evidence. Besides his there is only one Fardbayan on record, which has been relied upon by the pros-licution and which from the judgment of Coort below, appears, to have been taken the consideration and so far Appellant is concerned, he cannot be denied the right to use the Fardbayan in order to bring on (sic)cord contradiction in the evidence of informant and his statement given in the Fardbayan only on the ground that prosecution has failed to get it formally proved as held in the case of Sheo Prasad and Ors. v. Emperor (39 1938 Cri. L.J. 917).

Considering the entire evidence on record, we find that on the point of dacoity, the evidence of witnesses, other than in- formant, does not appear trustworthy in view of the evidence of Investigating Of- ficer that they had not stated the name of Appellant in their earlier statements. So far informant is concerned, we find that there is contradiction in his evidence and in this Fardbayan on the point and manner of entire occurrence including dacoity and in- fliction of injuries to him and his wife, chas- ing the dacoits etc. as well as on the point of number of dacoits identified by him at the time of dacoity and because of such contradictions, his evidence does not in- spire confidence to hold him trustworthy. We, therefore, find that prosecution has not been able to prove its case beyond all reasonable doubts against the Appellant and the conviction and sentence of Appel- lant cannot be sustained.

In the. result, this appeal is allowed and the Appellant is acquitted of the charge. As he is on bail, he is discharged from the liabilities of his bail bonds.

B.K. Jha, J.

I agree.