1. Heard learned Counsel for the appellant, Mr. A.K. Sahani assisted by learned counsel, Ms. Amrita Banerjee and learned Additional Public
Prosecutor, Mr. Gouri Shankar Prasad representing the State.
2. The present appellant has faced conviction for the charge under Section 302 of the Indian Penal Code and under Section 27 of the Arms Act under
the impugned judgment dated 16.10.1996 passed in Sessions Trial No. 47 of 1988 by the learned court of 1st Additional Sessions Judge, Palamau,
Daltonganj and has been sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code, but no separate sentence
has been recorded under Section 27 of the Arms Act, vide the order of sentence of the same date.
3. The prosecution case is based on the fardbeyan of Jitani Devi (P.W.1), wife of the deceased-Janki Yadav, recorded on 22.06.1996 at about 11:15
A.M. at Chhatterpur State Dispensary. In her fardbeyan, she alleged that in the night between 21st and 22nd June, 1986 the informant was sleeping in
her house and her husband Janki Yadav was sleeping with his female child, Rita Kumari (P.W.2), aged 7 years on a cot outside the house. Besides
the cot of her husband, Sukhdeo Yadav (P.W.4), Bihari Yadav (P.W.13) and Rambilash Yadav (P.W.11) were sleeping on a different cot. At about
01:00 A.M. in the night, she woke up on hearing a sound of gun fire. She noticed that the accused, Suryamukhi Yadav with a pistol in his hand and his
farther, Faguni Yadav were running away to their own house in a disheveled state and her husband was tossing and crying in a pool of blood on the
cot. She rushed to her husband crying loudly and found that he was having a bleeding fire-arm injury on the back of his head. Sukhdeo Yadav (P.W.4)
and Bihari Yadav (P.W.13), who were sleeping by the side of the injured also woke up on the sound of firing and saw Suramukhi Yadav and Faguni
Yadav running away. The informant alleged that prior to the occurrence a case was filed by the uncle-in-law of the informant Bandhu Yadav (P.W.5)
against the two accused persons in which her husband Janki Yadav had appeared and deposed as a witness. This was the reason why the accused
persons had issued threats to kill her husband a number of times. She further alleged that the exit of the house of the informant and Faguni Yadav,
accused was the same and this also was a reason for frequent quarrel. It was asserted by the informant that on account of such reasons the accused
persons taking opportunity of the dead of the night, together inflicted fire-arm injury with a country-made pistol upon her husband and caused him
serious injury. Her husband was taken to the hospital in a serious condition where he was under treatment and also unconscious.
4. On these allegations, the formal FIR bearing Chhatterpur P.S. Case No.86 of 1986 dated 22.06.1986 under Sections 307, 324, 326/34 of the Indian
Penal Code and 27 of the Arms Act against two accused persons namely, Faguni Yadav and Suryamukhi Yadav.
5. Upon conclusion of investigation, the case was found true and chargesheet was submitted bearing No. 74 of 1986 dated 04.11.1986 under Sections
307, 324, 326, 34/302 of the Indian Penal Code and Section 27 of the Arms Act against both the named accused persons since the husband of the
informant had died during treatment.
6. After cognizance the case was commitment to the Court of Sessions. Before the charges were framed, one of the accused Faguni Yadav, father of
the present appellant died. Charges were framed against the surviving accused by the learned court of 1st Additional Sessions Judge, Palamau,
Daltonganj on 13.04.1989 under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. The charges were read over and explained to
the accused in Hindi to which he pleaded not guilty and claimed to be tried.
7. During the course of trial prosecution examined total of fourteen witnesses, named as under:-
Jitni Devi, informant as P.W.1, Rita Kumari daughter of the informant as P.W.2, Abhimanyu Singh as P.W.3, Sukhdeo Yadav as P.W.4, Bandhu
Yadav as P.W.5, Tapeshwar Yadav as P.W.6, Ramchandra Yadav as P.W.7, Dr. Muneshwar Prasad Singh as P.W.8, Bindeshwari Prasad Singh as
P.W.9, Rajendra Singh as P.W.10, Rambilash Yadav as P.W.11, Meghia Devi as P.W.12, Bihari Yadav as P.W.13 and Dr. R.P. Sinha as P.W.14.
8. Apart from the oral witnesses, the prosecution proved certain documents up to Exhibit-9 as under:-
S.D. Entry no.354 dated 22.06.1986 as Exhibit-1, O.D. Slip as Exhibit-2, Injury report as Exhibit-3, fardbeyan as Exhibit-4, F.I.R. as Exhibit-5, Sketch
map as Exhibit-6, Inquest report as Exhibit-7, Post-mortem report as Exhibit-8 and case diary from page 78 to 89 as Exhibit-9.
9. After closure of the prosecution evidence the statement of the accused was recorded under Section 313 of the Cr.P.C. His case was of complete
denial and he claimed to have been falsely implicated in this case.
10. Upon consideration of the entire material evidence on record, the learned trial court was pleased to record conviction for the charged offences
against the sole accused based on the testimony of P.W.1, the wife of the deceased and P.W.-2, his daughter, both eye-witnesses to the occurrence
supported by the medical evidence of P.W.8 (Dr. Muneshwar Prasad Singh) and P.W.14 (Dr. R.P. Sinha). The investigating officers were examined
as P.W.9, Bindeshwari Prasad Singh and P.W.10, Rajendra Singh respectively who had proved the place of occurrence.
In order to test the legality and correctness of the findings, we have scanned the entire material evidence on record and also taken into account the
legal and factual grounds, urged on behalf of appellant and also on behalf of the State by the learned Additional Public Prosecutor.
11. On behalf of the appellant, loopholes have been sought to be drawn in the prosecution case on the contention that out of fourteen prosecution-
witnesses leaving aside the formal witnesses or the investigating officers or the medical officers, several material witnesses have been declared hostile
i.e. Sukhdeo Yadav (P.W.4), Bandhu Yadav (P.W5), Tapeshwar Yadav (P.W6), Ramchandra Yadav (P.W.7), Rambilash Yadav (P.W.11), Meghia
Devi (P.W.12) and Bihari Yadav (P.W.13). The case of the prosecution hinges on the testimony of P.W.1 and P.W.2 alone. P.W.1 claims herself to
be an eye-witness and as per her testimony, P.W.2, her daughter, aged 7 years was sleeping at the time of occurrence on the cot along side her
husband. Therefore, whatever P.W.2 who is a child witness has stated, is not worthy of full credence. She has narrated the prosecution case in a
parrot like manner on tutoring by her mother (P.W.1). Those persons who as per fardbeyan were also sleeping beside the cot of the victim namely,
Sukhdeo Yadav (P.W.4), Bihari Yadav (P.W.13) and Rambilash Yadav (P.W.11), all of them turned hostile during trial. The case of the prosecution,
therefore, hinges upon the sole testimony of P.W.1 and findings of conviction based thereupon is to be scrutinized with great care and caution. The
statement of P.W.1 itself discloses that she was sleeping inside the house with the door closed and the time of occurrence is 01:00 A.M. She has
alleged that on hearing the gun-shot in a state of deep-slumber she could realize something amiss and then came out of the window of the room and
has seen the accused Surajmukhi Yadav leaving the place in a perplexed state with a pistol in his hand and his father Falguni Yadav moving alongwith
him in a suspicious condition. Side by side she saw the victim in a pool of blood tossing in a state of pain but not conscious enough to disclose anything
about the occurrence. The manner in which the occurrence has been described by P.W.1 does not show that she was an eye-witness to the
occurrence. The informant has tried to implicate the accused persons admittedly on account of a pre-existing dispute both in respect of a criminal case
relating to mischief by fire with intent to destroy house caused by the two accused persons in which her husband had deposed as an eye-witness and
frequent quarrel in relation to the exit of the house of both the accused persons and the informant. The informant had therefore a motive to falsely
implicate the accused persons. P.W.2 (Rita Kumari) is a child witness whose testimony has to be examined with a fair degree of caution as she was
only seven years old at the time of occurrence and was sleeping at the time of occurrence and did not have a sufficient level of understanding to
appreciate the occurrence which led to the death of her father. Since none of the other prosecution witnesses who are material and were supposedly
at the place of occurrence or arrived at place of occurrence soon after the incidence have supported the case of the prosecution as unfolded through
the fardbeyan of informant (P.W.1), the conviction of the appellant for the offence of murder is not safe to be sustained in the eye of law.
12. Learned Additional Public Prosecutor has argued in defence of the impugned finding. He has, in particular, relied upon the statement of the
informant, who has supported the case of the prosecution, as set up through her fardbeyan and was a natural eye-witness to the occurrence. Despite
the fact that other material prosecution witnesses turned hostile during trial, the testimony of P.W.1, the wife of the deceased and the daughter, Rita
Kumari (P.W.2) who was a vital eye-witness to the occurrence and was sleeping on the same cot as that of the deceased, cannot be simply discarded
to upturn the findings recorded by the learned trial court. The fire-arm injury has been proved through the medical evidence of P.W.14 (Dr. R. P.
Sinha) who conducted the post-mortem examination and proved the same as Exhibit-8. The motive of the crime has also been adequately proved
through the informant in her fardbeyan who supported her assertions in the fardbeyan, during trial and also by the Investigating Officer, Bindeshwari
Prasad Singh (P.W.9), who at Paragraph-6 in his cross-examination has categorically referred to the Complaint Case bearing No.101 of 1986 stated
as the motive by the informant for the accused persons to have indulged in the murder of her husband. The relevant facts in issue relating to the time
of occurrence, the place of occurrence, the manner of occurrence, the weapon used in the occurrence, the resultant fire-arm injury caused by the
weapon of assault and the death of the victim, Janki Yadav, as a result of that fire-arm injury, all have been cogently proved by the prosecution to
bring home the charge beyond shadow of all reasonable doubt against the sole accused/appellant. Therefore, there is no element of doubt left in the
prosecution case which would entitle the appellant to seek his acquittal on the ground of benefit of doubt. The appeal is without merit and fit to be
dismissed.
13. We have considered the submissions of the learned counsel for the appellant, learned Additional Public Prosecutor, gone through the entire
materials on record including fardbeyan, framing of the charge, the evidence of fourteen prosecution witnesses, nine prosecution exhibits, the
statement of the accused under Section 313 of the Cr.P.C. and also perused the impugned judgment of conviction and order of sentence. As noticed
herein-above, we find that though fourteen prosecution witnesses were adduced by the State, but the case of the prosecution hinges on the testimony
of the informant, P.W.1 (Jitani Devi), P.W.2 (Rita Kumari), the daughter of the deceased (Janki Yadav) and the Investigating Officers, P.W.9
(Bindeshwari Prasad Singh) and P.W.10 (Rajendra Singh), as also the medical evidence in the nature of P.W.8 (Dr. Muneshwar Prasad Singh) who
proved the injury report and P.W.14 (Dr. R. P. Sinha) who proved the post-mortem report. As per the prosecution case, set up through the mouth of
the informant, the deceased was sleeping on a cot along with his daughter, P.W.2 (Rita Kumari) and three other persons including the elder brother of
her husband, Sukhdeo Yadav (P.W.4), Bihari Yadav (P.W.13) and Rambilash Yadav (P.W.11) were sleeping besides the victim in separate cots. On
hearing the gun-shot injury at about 01.00 A.M. in the night, she rushed out of the room and saw the accused, Surajmukhi Yadav fleeing the place in a
perplexed state with a pistol in his hand along with his father, deceased-accused, Faguni Yadav with a torch in his hand. She has also stated during her
examination that she had seen the occurrence in the moon light. Her husband was tossing and trembling in pain with an injury on the back of his head
and was not in a state of consciousness to disclose about the assault. She does not falsely attribute anything from the mouth of the victim. She has
stated whatever she saw. Whatever she saw was the immediate aftermath of the assault committed by the appellant, Surajmukhi Yadav through a
firearm, a country-made pistol on the head of her husband. Her daughter, Rita Kumari (P.W.2) was sleeping beside her father on the same cot and
she in her deposition as P.W.2 has also supported this part of the prosecution case during her deposition in trial. Postmortem was done by Dr. R.P.
Sinha (P.W.14) on the dead body of Janki Yadav, aged about 38 years. The postmortem report has been proved by him as Exhibit-8. It found the
following ante mortem injuries on his person:-
“Wound of entry at R- parietal region about 2†in diameter and 4†in depth. Bone was fractured at the site of injury and margin was raised.
On dissection of the wound there were 25 pillets seen which were kept preserved for further needful action. Wound of exit could not be detected.
However the gray matter & white matter of brain at the site of injury were protruding and lacerated there. No other evidence of injury or arms so far
victim has.
Doctor has opined that death was due to shock and haemorrhage as a result of the above mentioned injury of the head caused by gun shot injury.
Time elapsed since death 6 to 36 hours.â€
It is clear from a perusal of the post-mortem report that the deceased had sustained fire-arm injury, causing charring. The injury report proved by
P.W.8 (Dr. Muneshwar Prasad Singh) as Exhibit-3 also showed that the deceased had sustained fire-arm injury on his head and there was incidence
of charring of skin all around the wound. This injury by gun-shot on the head led to shock and haemorrhage which in the opinion of the Doctor was
cause of the death. The injury report (Exhibit-3) proved by Dr. Muneshwar Prasad Singh (P.W.7) shows that victim, Janki Yadav was examined on
22.06.1986 and the same nature of injuries were found as described hereunder:-
“The patient was unconscious. There was one punctured lacerated wound over the right occipital bone. There was a fracture of the posterior part
of head bone. There was charring of the skin all around the wound. There were five pillets embedded in the wound.
Nature- grievous.
Caused by firearm.
Age of injury- 24 hours.â€
Indisputably the case of the informant stands corroborated through the medical evidence. Death of the victim, Janki Yadav resulted due to gun-shot
injury on his head. We find from the testimony of P.W.1 including her fardbeyan and that of the Investigating Officer, Bindeshwari Prasad Singh
(P.W.9) that there was motive for the crime, as alleged by the informant. There was a Complaint Case bearing No.101 of 1986, which was in relation
to some land dispute. The Investigating Officer (P.W.9) has duly proved the place of occurrence and it tallies with the description of the place of
occurrence by P.W.1, the informant. He has stated that empty cartridge was recovered from the place of occurrence. Though we find that other
material prosecution witnesses, namely, Sukhdeo Yadav (P.W.4), Bandhu Yadav (P.W.5), Tapeshwar Yadav (P.W.6), Ramchandra Yadav (P.W.7),
Rambilash Yadav (P.W.11), Meghiya Devi (P.W.12) and Bihari Yadav (P.W.13), all have turned hostile, as they did not support the case of the
prosecution, but the testimony of the informant (P.W.1) and wife of the deceased read with the deposition of her daughter, Rita Kumari (P.W.2) are
so cogent, reliable and trustworthy that it cannot be discarded to upset the findings recorded by the learned trial court, as pleaded on behalf of the
appellant. It is well-settled by the judgments of the Hon’ble Apex Court that conviction under Section 302 of the I.P.C. can well be recorded on
the testimony of a sole witness if it inspires confidence and is otherwise trustworthy and reliable. Reliance is placed on a judgment reported in (2012) 1
SCC 10, Para-49 (Prithipal Singh and others Vs. State of Punjab and another).
There was indeed a motive for the occurrence, as proved through the mouth of the P.W.1 and supported by the testimony of P.W.9 (Bindeshwari
Prasad Singh), Investigating Officer. All the important ingredients to prove the charge i.e. the time of occurrence, the place of occurrence, the manner
of occurrence, the immediate effect of the occurrence, the use of fire-arm to inflict the fatal injury and the resultant injury found on the dead-body of
the deceased all have been proved consistently by the prosecution to bring home the charge.
14. Considered thus, we do not find any substance or merit in the appeal as urged on behalf of the appellant to interfere in the findings of conviction
recorded by the learned trial court. The appeal is therefore, devoid of merit and fit to be dismissed. It is, accordingly, dismissed.
15. The appellant is on bail, his bail bonds stand cancelled. He should be taken into custody forthwith to suffer remainder of his sentence.
16. Let the lower court record be sent to the court below alongwith a copy of the judgment.
