Sakaldeo Prasad vs State of Bihar

R.N. Prasad and A.K. Sinha, JJ.—The sole Appellant has been convicted for the offence u/s 302 of the Indian Penal Code and sentenced to undergo imprisonment for life vide judgment and order dated 4.6.1987 passed by the 9th Additional Sessions Judge, Arrah in Sessions Trial No. 437 of 1986.

The informant, Rameshwar Prasad, is a co-villager of Bharat Mishra, the deceased. He was living in the house of the informant as a tenant and was pulling riskshaw of the informant on hire. The informant gave, his Fardbeyan on 11.2.1986 at 4.15 P.M. that at about 4 P.M. while he was returning from Gopali Chowk after purchase of medicine and came near the B.Sc. shoe he found Bharat Mishra sitting on the rickshaw. The Appellant came and gave him dagger blow and ran away. He found bleeding injury on the person of the deceased. Vijay Kumar, Uday Shankar, Ranjit Singh and many others came and saw the occurrence. Bharat died then and there. The motive of the occurrence was that there was altercation about 4-5 days ago between the Appellant and prostitute Bina, the sister of the Appellant. Bharat Mishra had disclosed that the Appellant had threatened him to assault.

On the aforesaid fardbeyan formal first information report was drawn, investigation was taken up and on completion of investigation charge sheet was submitted in the court. The court took cognizance and committed the case to the court of sessions for trial. The trial court convicted the Appellant as indicated above.

The defence of the Appellant was that he was innocent and was falsely implicated at the instance of the police as one Munni Devi had lodged a case against Bhuneshwar Singh, Sub Inspector of Police, in which the brother of the, Appellant, Pradeep, and his sister were witnesses.

The prosecution in support of its case examined 12 witnesses out of whom P.W. 1, P.W. 2, P.W. 3, P.W. 5, P.W. 6 and P.W. 11 were declared hostile. P.W. 7 is investigating officer. P.W. 8 is a doctor, who held postmortem over the dead body. P.W. 9 proved Sanha entry. P.W. 10 proved first information report. P.W. 12 arrested the Appellant on 12.2.1986 at Patna. P.W. 4 is informant and has claimed to be an eye witness to the occurrence.

In the instant case P.W. 4 is informant. His evidence is that on the day of occurrence in the evening he was coming from Gopali Chowk. When he reached near B.Sc. shoes shop he saw Bharat Mishra, the deceased, sitting on a rickshaw the Appellant came and gave dagger blow and ran away. There was commotion and shops were closed. He went near Bharat Mihsra and found him dead. The occurrence was witnessed by P.W. 1, P.W. 5 and P.W. 6. The police came and he gave his fardbeyan. In cross examination the witness stated that P.W. 5 and P.W. 6 are sons of his sister. Bharat Mishra, the deceased was living in his house. He was pulling rickshaw. The police kept him, P.W. 5 and P.W. 6 at the police station on the pretext that they had danger of life. The witness denied the knowledge that Munni was living in the house of the Appellant and had lodged a case against Bhuneshwar Singh, the Sub Inspector of Police, in which brother of the Appellant and his sister were witnesses.

P.W. 5 is Bhagina (sister''s son) of P.W. 4. He has been declared hostile but in cross examination he admitted that he was kept at the police station for two days. The Sub Inspector of Police tutored him to make statement before the Magistrate u/s 164 Code of Criminal Procedure and he accordingly made statement before the Magistrate but this fact could not be disposed before the Magistrate out of fear. Therefore, the evidence of P.W. 4 that he and P.W. 5 were kept at the police station is also corroborated by the evidence of P.W. 5. Moreover, P.W. 4 has stated that the Appellant came and gave dagger blow to the deceased and ran away. The doctor, P.W. 8, who held postmortem over the dead body had found three injuries on the person of the deceased of which two were caused by dagger and one by hard blunt substance. There is nothing on the record to show as to how the deceased had sustained injury caused by hard blunt substance. The defence in support of its case proved first information report lodged by Munni Bai against Bhuneshwar Singh, Ext. ''A'', Charge sheet in the said case, Ext. ''B'' and the order sheet, the result in the said case, after hearing. It appears from the charge sheet that the brother of the Appellant and his sister were witnesses in the said case. The defence is not required to prove any case but to create only suspicion against the prosecution case. Furthermore, it is a case of Arrah town itself. The first information report was lodged on 11.2.1986 but the first information report was received in the court on 13.2.1986 though the court is in the Arrah town itself. It is a fact that the number of witnesses is not required to establish a case. The conviction can be sustained on the evidence of sole witness provided the evidence of sole witness is wholly trustworthy. In the instant case, on consideration and the discussions made above we are of the view that the evidence of the sole witness is not wholly trustworthy and there is no corroborative evidence on the record. Thus, the appeal is allowed and the judgment and order of conviction is hereby set aside. The Appellant is discharged from the liability of the bail bonds.