C.M. Prasad, J.
1. This appeal is against the judgment dated 17-12-2002 of the 5th Additional Sessions Judge, Saran at Chapra passed in Sessions Trial No. 504/ 01/267/01 whereby each of the three appellants has been convicted under Section 364 of the Indian Penal Code and sentenced to undergo R.I. for ten years and a fine of Rs. 1000/- and in default of payment of fine to undergo R.I. for three months.
2. It has to be mentioned here that one accused, namely, Lalan Rai was also tried along with the appellants by the trial Court for the charge but he was acquitted and the appellants have been convicted and sentenced as above.
3. The prosecution commenced with the fardbeyan (Ext. 2) of the informant Vidhan Rai. The fardbeyan was recorded by the S.I. B. Kumar of Parsa P.S. on the statement of the informant on 25-8-1999 at 8 p.m. The informant stated that on 25-8-1999 at 5 p.m. while he (informant) along with his father Rameshwar Rai (victim) were sitting on chairs in his Dalan and while they were gossiping, the accused Lallan Rai (acquitted by the trial Court) carrying a country made rifle came there. Behind him Awadesh Rai, Paras Rai (appellant) Doman Rai, Naresh Rai (appellant), Ganesh Rai (appellant), Budhan Rai, Chandi Rai, Harendra Rai, Khema Rai middle son of Harendra Rai whose name he did not know, all carrying country made pistol and rifles came there. Seeing the informant and his father Lallan Rai said 'Maro Sale Ko' whereupon he (informant) and his father started fleeing away from there towards back of Dalan but Lallan Rai fired from his rifle which hit his father in the thigh and on receiving injury he fell down. After his falling down all the above accused persons caught hold of him and beating him and took away him towards village English. The' informant further stated that his neice Kiran Kumar (P.W. 1) and neighbours had witnessed the occurrence and they testified it about cause of occurrence. It was stated that about one year ago Chhabila Rai had been killed and in that murder he (informant) and his father (victim Rameshwar Rai) had been made F.I.R. named accused and that due to that grudge the accused persons committed the occurrence with a view to take retaliation and the accused persons kidnapped away his (informant's) father.
4. As many as eight witnesses were examined by prosecution. P.W. 1 Kiran Kumari is the grand-daughter of the victim and she has been named in the fardbeyan as eyewitness to the occurrence. P.W. 2 Shatrughna Rai is the son of the victim but he was not named as eye-witness in the fardbeyan. This witness supported the prosecution story in part only and he resiled from his previous police statement, hence he was declared hostile by prosecution and the attention of this witness was drawn by the learned A.P.P. towards his previous police statement. The P.W. 3 Renu Devi is the daughter-in-law of the victim but she too has been declared hostile by the prosecution because she supported the prosecution story in part and resiled from her previous police statement to a great extent, hence, her attention was also drawn by the learned A.P.P. towards her previous police statement. P.W. 4 Musafir Sah and P.W. 5 Jamuna Rai are the other witnesses but they have completely turned hostile saying to be knowing nothing about the occurrence and they have also denied to have made any police state-ment, supporting the case of prosecution before the I.O. P.W. 7 Saroja Devi is the daughter of the victim and she was not named in the fardbeyan and this witness has also been declared hostile by the prosecution and her attention was drawn by the A.P.P. towards her previous police statement because she supported the prosecution story in part and she resiled from her previous police statement.
5. P.W. 8 Sidheswar Paswan J.S.I, is the I.O. who had investigated into the case and he had visited the P.O. and had also recorded the statement of witnesses during investigation.
6. P.W. 6 Ram Nath Vishwakarma, A.S.I., took the charge of investigation at its end and submitted charge-sheet on perusal of the materials collected by the previous I.O. 11 has to be mentioned here that the informant of the case has not been examined because he was killed by the criminals as deposed by P.W. 2 at para 12.
7. P.W. 1 Kiran Devi deposed that Awadesh Rai Doman Rai carrying guns came there and started firing on him. Her grandfather started fleeing away and at that time he received fire-arm injury on his thigh and on receiving injury he fell down and thereafter those accused persons beating him took him away towards West and, thereafter, he was not found. At para 3 of her evidence the learned A. P. P. drew attention of this witness towards her previous police statement that along with the said five accused as said by her in examination-in-chief that Lallan Rai, Budhan Rai, Chandi Rai, Khema Rai, Ram Swarekh Rai and Harendra Rai all carrying pistols and rifles had come to her Darwaja. The P.W. 1 denied to have made such police statement before the I.O. But the I.O. (P.W. 8) at para 6 of his evidence has proved the police statement deposing that the P.W. 1 had given such police statement before him in course of investigation. Learned Counsel for the appellants argued that in the fardbeyan also as many as 11 persons have been mentioned, as the culprits who variously armed had come with specific attribution that accused-Lallan Rai had hit the informant's father on his thigh and that the accused persons had taken away him (informant's father). Thus 1.1 persons were named in the fardebayn and in the police statement as stated by the P.W. 1 the aforesaid 11 persons had committed the occurrence. But in her evidence before the Court, the P.W. 1 names only 5 persons leaving 6 persons. There is no explanation for this. Thus, there is a contradiction about the persons who had participated in the occurrence.
8. The P.W. 1 at para 5 deposed that informant Vidhan Rai was not alive. At para 6 she further deposed that her uncle Vidhan Rai (informant) and grand-father (victim) both had gone to jail but she was unable to say how many times they had been sent to the jail. At para 15 of her evidence she deposed that she had seen that accused-Ram Naresh Rai had fired on her grand-father (victim) hitting him on thigh. The learned Counsel for the appellants pointed out that in the fardbeyan it has been categorically alleged that accused-Lallan Rai had fired on the victim hitting him on his thigh. Thus, the P.W. 1 is contradicted by the averment of the informant in his fardbeyan on the point.
9. At para 7 of her evidence, the P.W. 1 deposed that the houses of Binda Rai, Anandi Rai, Ram Daras Rai and Sakhiran Rai are adjacent to the place where her grand-father (victim) was sitting. Here the learned Counsel for the appellants drew attention towards the fardbeyan wherein it is stated that Kiran Devi (P.W. 1) and the neighbours had seen the occurrence and they would testify about it. Thus, the persons, namely, Binda Rai, Anandi Rai, Ram Das Rai, and Sarikhan Rai are the close neighbours of the informant and according to the fardbeyan the close door neighbours had seen the occurrence but none of these neighbours has been examined by the prosecution to say about the occurrence. There is no explanation why these neighbours who according to the fardbeyan had seen the occurrence were not examined by prosecution. Due to non-examination of these neighbours, an adverse inference has to be drawn against the case of prosecution that had they been examined they would not have supported the case of prosecution, hence, they were not produced for examination. The learned Counsel for the appellants argued that in the very fardbeyan it has been stated that the accused-persons committed the occurrence due to grudge of murder case of one Chhabila Rai in which the informant and his father (victim) were made F.I.R. named accused. Thus there was enmity between the parties. Learned Counsel submitted that due to enmity the appellants have been implicated on suspicion but the prosecution case and the evidence adduced. by prosecution cannot: be disbelieved simply on the ground of enmity and whatever is required in such case is that the evidence of witnesses has to be examined with great care and caution.
10. So far the evidence of P.W. 1 is concerned she stands contradicted by the fardbeyan in the manner that according to her evidence, the accused-Ram Naresh Rai had fired, hitting the victim on his thigh whereas in the fardbeyen there is categorical statement of the informant that it was Lallan Rai who come first and fired his rifle hitting the victim on his thigh. Besides this, there are 11 persons named as criminals in the fardbeyan and according to the police statement as proved by the I.O. that the P.W. 1 had also named so many persons as criminals before the I.O. But in her evidence before the Court she names only five persons leaving the others. There is no explanation for this and this constitutes a contradiction in her evidence with regard to number and the manner of accused persons committing the crime. Due to these contradictions and infirmities, a doubt created is over the competency of P.W. 1 as eye-witness to the occurrence.
11. The P.W. 2 Satrughna Rai is the son of the victim but he was not named in the fardbeyan as eye-witness: This witness de-r posed that on hearing sound of firing he ran up and came to his Bathan and saw Naresh Rai, Doman Rai carrying guns and Paras Rai and Ganesh Rai carrying pistols there and that his father (victim) had received fire-arm injury on his thigh and that these persons took his father towards West. This witness was declared hostile by prosecution because he named only a few accused persons and he resiled from his previous police statement given before the I.O. and on attention being drawn by the learned A.P.P. this witness denied to have made any police statement naming as many as those 11 accused persons whose names also appeared in the iardbeyan. The I.O. (P.W. 8) at para 7 proved the statement of this witness as given during investigation in which this witness had named all those accused persons who were named in the fardbeyan. This witness is the son of the victim and he admits at para 33 that he had been sent to jail. At para 12 of his evidence he deposed that the informant Vidhan Rai was murdered but any case for his murder was not lodged. Here the learned Counsel for the appellant argued that the informant and the victim of the case were criminals and admittedly had gone to the jail and P.W. 2 who is the brother of the informant and the son of the victim has also gone to jail. The learned Counsel continued to argue that the informant, victim and witnesses who were the family members were criminals and had gone to the jail in connection with a case against them and that the occurrence, if any, Was committed by the same criminals, but due to enmity the informant and his family members implicated the appellants falsely in this case. This witness at para 19 deposed that on receiving injury his father (victim) fell down and his chair on which he was sitting toppled and blood had fallen there on an area about 1 ambit.
12. Considering the evidence of P.W. 2,1 find that this witness stands contradicted with the fardbeyan and also his previous police statement as proved by the I.O. with regard to the number of the accused persons committing the occurrence.
13. P.W. 3 Renu Devi is the daughter-in-law of the victim but she was not named as a witness in the fardbeyan. She deposed that she was sitting on her Darwaja, her father-in-law Rameshwar Rai (victim) was also sitting on a chair. She continued to depose that at that time Naresh Rai carrying rifle, Ganesh Rai, Doman Rai, Paras Rai and Awadesh Rai carrying small fire-arms came there and then Naresh Rai shot at her father-in-law and thereafter the accused persons beating him took him away. This witness was declared hostile by prosecution because she resiled from her previous police statement about the number of accused persons committing the occurrence and also about the assailant to the victim. On her attention being drawn by the learned A.P.P. that this witness denied to have made any police statement naming all those persons as accused as named in the fardbeyan and also stating that accused-Lallan Rai had shot at the victim hitting him on his thigh. The I.O. (P.W. 8) at para 7 has proved the police statement towards which the attention of this witness (P.W. 3) was drawn by the learned A.P.P. Thus considering the number of accused persons as stated in the fardbeyan and also the number of accused persons as stated by this witness herself before the I.O. and leaving majority of those persons and naming only five in her evidence and also the contradiction on the point of assailant that in the fardbeyan, the accused-Lallan Rai is stated as the assailant to the victim but in the evidence of this witness Naresh Rai is the assailant. I find that there is contradiction which creates doubt about the testimony of this witness. This witness has deposed at para 10 of her evidence that blood had fallen on the place where her father in-law had fell down after receiving injury. According to the evidence of P.W. 2 (at para 19) the victim had fallen down after receiving fire-arm injury and the chair had toppled and blood had fallen there. Thus, it was argued by the appellants' counsel that blood had fallen at the Darwaja of the victim where he fell down after receiving injury. This will be considered later on in the context of the evidence of other witnesses on this point.
14. The P.W. 7 Saroja Devi is the daughter of the victim but she was not named as witness in the fardbeyan. She deposed that she was in her Maika and while she was sitting on her Darwaja, the accused-Naresh Rai, Ganesh Rai, Paras Rai, Doman Rai and Awadesh Rai came and Naresh Rai shot at her father Rameshwar Rai (victim) hitting him on his thigh. She further deposed that her father fell down and thereafter the accused persons beat him and took him away towards West. This witness was also declared hostile by prosecution due to reason that this witness supported the case of prosecution partially and she did not name all the accused persons as named in her previous police statement. On her attention being drawn by the learned A.P.P. towards her previous police statement she denied to have named so many persons as named by the informant in his fardbeyan as criminals. But the I.O. (P.W. 8) at para 7 has proved the police statement of this witness wherein she has named all those persons who were named in the fardbeyan as assailants with this specific attribution that Lallan Rai had shot at the victim hitting him on his thigh. Thus this witness, in her statement before the I.O. named so many accused persons as also named in the fardbeyan as criminals. But in her evidence before the Court she names only five persons. Beside this, considering her previous statement before I.O. and also the statement of the informant in his fardbeyan that Lallan Rai had shot at the victim hitting on his thigh whereas according to this witness it was Naresh Rai who had shot the victim hitting him on his thigh, a grave contradiction on the point of the assailant and the composition of the assailants appears which raises suspicion about credibility of the witness as an eyewitness. This witness has also deposed at para 9 of her evidence that blood had fallen in an area about one cubit on the place where the victim had fallen down after receiving injury. She continued to depose at para 11 that she had shown the blood to Darogaji and Darogajs had seized the blood.
15. The I.O. (P.W. 8) at paras 5 and 12 of his evidence deposed that he had inspected the place of occurrence which was Dalan of the informant. He further deposed that he had not found any blood on the P.O. nor he found any mark of dragging at the P.O. According to P.W. 2 at para 19, P.W. 3 at para 10 and P.W. 7 at para 9 blood had fallen at the place where the victim had fallen from his chair after receiving fire shot injury on his thigh. The victim was sitting at his Dalan. Thus blood had fallen on the Dalan of the victim. According to the I.O. he also found the Dalan as the place of occurrence but he did not find any blood or mark of dragging on the P.O. Thus not finding any blood by the I.O. on the P.O. nor there being mark of any dragging a serious doubt is entertained over the existence of location of the P.O. as said by the prosecution and it makes prosecution story highly doubtful so far as the place of occurrence is concerned. In this case only the family members who are the most interested witnesses have been examined and their evidence is also full of contradictions and infirmities. No independent witness has come to support the case of prosecution though in the fardbeyan the informant stated that the neighbours had seen the occurrence and they would testify about it. The P.W. 1, the daughter of the victim also deposed that at para 7 of her evidence that houses of Binda Rai, Anandi Rai, Ramdas Rai and Sarikhan Rai situate adjacent to the place of occurrence. Thus these persons were close neighbours of the informant but they have not been examined. There is no explanation for their non-examination. The non-examination of such neighbours also goes against the case of prosecution.
16. Thus, considering the facts and circumstances and the evidence as discussed above, I find that the evidence as adduced by the prosecution does not inspire confidence and the prosecution has not been able to prove charge beyond shadows of reasonable doubt, therefore, the appellants are entitled to benefit of doubt. Thus giving benefit of doubt, the appellants deserve to be acquitted of the charge. In the result, the order of conviction and sentence as passed by the learned trial Court is hereby set aside.
The appeal is allowed accordingly.