Rama Shankar Rai vs The State of Bihar

Akhilesh Chandra, J.—Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

The solitary appellant has preferred this appeal against his conviction for the offences under Sections 307 and 395 of the Indian Penal Code and sentenced to undergo respectively rigorous imprisonment for 10 and 7 years with a fine of Rs. 1000/- each for both the offences, however, the sentences are to run concurrently, as awarded on 22nd June, 2002, by learned Additional Sessions Judge, F.T.C.-II, Aurangabad, in connection with Session Trial No. 128/89/161/2002 arising out of Kutumba P.S. Case No. 10/89.

The case was instituted against unknown for the offences u/s 395 of the Indian Penal Code on the Fardbeyan of one Yogendra Tiwary (P.W. 6) recorded on 5th February 1989 at 04 hours by S.I. Mundrika Prasad (P.W. 9) which reveals that at about 1.00 a.m. while the entire family members were sleeping suddenly the informant awoke on hearing the sound of firing and found his sister-in-law Uma Devi (P.W. 5) in injured state lying on a cot and there was some hue and cry in the courtyard, he could see 15 to 16 unknown dacoits armed with Lathi, Bhala, Gandsa and gun and father of the informant Bhairav Tiwary (P.W. 7) started throwing brick pieces and in the torch flash made by the miscreants, he could be able to see their physical features, one of them also threw explosive substance upon father of the informant who sustained some injuries and the dacoits could be able to take one tangi which also they thrown in a brinjal field. During investigation, name of the appellant emerged and ultimately he was put on trial for the offences u/s 395 and 307 of the Indian Penal Code. Subsequently, during trial and after examination of almost all private witnesses he was further charged for the offences u/s 397 of the Indian Penal Code leading to recall of the witnesses for further cross examination, which was done, and the court below after considering the following documentary evidence and statement of altogether nine prosecution witnesses convicted and sentenced the appellant in the manner aforestated.

Exhibit 1-Signature of Yogendra Tiwary on Fardbeyan

Exhibit 1/1-Signature of Birendra Tiwary on Fardbeyan

Exhibit 1/2-Signature of Ran Vijay Tiwary on Fardbeyan

Exhibit 2-Injury report Exhibit 2/1-Injury report

Exhibit 3, 3/1-Signature of witnesses on Fardbeyan. Exhibit 4-Formal F.I.R.

Exhibit 5, 5/1-Signature of witnesses on seizure list.

Exhibit 6-O.D. Slip

For identification X to X/3-four medical prescription.

Out of nine prosecution witnesses, P.W. 1 namely, Nepal Tiwary a family member almost states the prosecution version including bringing the injured P.W. 5 at hospital for treatment who was referred to Aurangabad, Gaya, Delhi etc., but, this witness has not said a word about the involvement of the appellant or even any suspicion raised against him.

P.W. 2 namely, Sheela Devi, wife of P.W. 1, while stating the prosecution version, further states that P.W. 5 was naming the appellant as an assailant and member of the dacoits, but this witness has not made such statement before the police during investigation nor given any explanation as to why not she could be able to intimate other family members, if at all anything was being named by P.W. 5.

Almost similar is the position of P.Ws. 3 and 4 namely, Ranju Kumari and Pratima Kumari another family members and sisters of the informant.

P.W. 6 namely, Yogendra Tiwary is the informant while stating the prosecution version, for the first time, during trial states that he had some doubt about one of the miscreants appearing like the appellant, but even such doubt was not raised at the time of recording of Fardbeyan which was recorded at least 3 to 4 hours after the occurrence and having sufficient time not only to meet other family members but also P.W. 5 who is the person from whom other witnesses claimed to known about involvement of the appellant.

Almost similar is the position of P.W. 7 namely, Bhairav Tiwary who is none else than father of the informant and head of the family and allegedly one of the injured.

P.W. 5 namely, Uma Devi, who is only the person claims to have initially confrontation with the miscreants while she was coming from roof of the house to meet natural call, and just on opening the door she could see the gathering of miscreants. Further, she claims that appellant assaulted her by Lathi on the eyes and when she raised alarm naming him he also fired upon her, splinters in good numbers which caused injuries on eyes, forehead, palms etc. to her, anyhow she went up at the roof and fell down on the cot. She further claims that other family members arrived and surrounding her and she intimated about the appellant. If at all, this is the truth that P.W. 5 sustained injuries at the hands of the appellant and one of the members of dacoits. There is nothing to explain what prevented the informant to get the case instituted at least naming the appellant. But, as is evident from the Fardbeyan (Exhibit-1), there is not even a whisper and even in his subsequent statement either u/s 161 of the Code of Criminal Procedure or as a witness in trial has not specifically stated about the involvement of the appellant or disclosure of his name by P.W. 5, rather he tried just to throw a doubt on the ground of some physical resemblance with one of the participants.

P.W. 8 namely, Dr. Nandkishore Prasad initially treated P.Ws. 7 and 5 and proved his reports (Exhibit 2 and 2/1), neither with respect to P.W. 5 nor this witness corroborates any injury sustained by P.W. 5 by means of fire arms.

P.W. 9 namely, Mundrika Prasad, the ascribe of fardbeyan and Investigating Officer, found nothing intimating any sort of disturbances in the articles kept in the house though found one empty cartridge and some blood-stains. As per P.W. 7, nothing was taken away during the incident. This further strengthen the suggestions right from beginning by defence that in fact no dacoity took place and prosecution has given some other colour of happenings of dacoity and subsequently got the appellant involved with ulterior motive.

The facts and circumstances discussed above, it clearly indicates that prosecution has not been able to substantiate the charges against the appellant after completely removing the clouds casted. In view of the above, conviction and sentence of the appellant is not at all sustainable, hence, it is set aside. The appeal is hereby allowed. The appellant is set free from the liability of respective bail bond furnished on his behalf.

Let the lower court records be sent back to the court below forthwith.