Ananda Sen, J
1. This criminal appeal is directed against the Judgment of conviction dated 16.7.2002 and order of sentence dated 17.7.2002 passed by the learned Addl. Sessions Judge-, FTC-II, Hazaribagh in Sessions Trial No. 512 of 1993, whereby and whereunder, the appellants having been found guilty of charge under Sections 302/149 and 201 of Indian Penal Code and have been convicted and sentenced to undergo imprisonment for life for the offence under Section 302/149 IPC and R.I. for three years under Section 201/149 of the Indian Penal Code.
2. The learned senior counsel for the appellants submitted that the Trial Court has wrongly appreciated the evidence, led by the prosecution as P.W. 5 did not identify any of the assailants. He further submitted that only 3-4 assailants were there, thus the prosecution version that more than ten persons were present in committing the offence is absolutely false. He also contended that the evidence of P.W.5 cannot be brushed aside, as he has not been declared hostile. It has also been contended that from the evidence of this prosecution witness, it is quite clear that just because of grudge and enmity, all the accused persons have falsely been implicated in this case. He also submitted that to bring home the charge under Section 302 IPC, the prosecution has to prove the homicidal death, but in this case, the doctor, who conducted the postmortem of the deceased, has not been examined, thus it can be held that there is no material to prove the homicidal death. It has also been contended that the Investigating Officer of this case has also not been examined, which caused great prejudice to the defence as the place of occurrence has not been proved. It has also been contended that the appellants have been convicted under Section 302/149/201 IPC only and there is no charge framed either under the Arms Act or under the Explosive Substance Act, which would clearly suggest that the prosecution case as narrated in the FIR that there was firing from gun and pistol and there was hurling of bomb is false. On these grounds, learned senior counsel for the appellants has prayed for acquittal of the appellants.
3. Counsel for the State submitted that there are eye witnesses to the occurrence who had supported the prosecution case, as they have stated how the deceased was murdered. He further submitted that since the eye witnesses have supported the prosecution case and there is no material to disbelieve the eye witnesses, the conviction is justified. He also submitted that P.Ws. 1, 2 and 4 are the eye witnesses, who narrated exactly what they had seen and they are reliable witnesses, thus their testimony cannot be brushed aside. As per their statement, the death is homicidal and involvement of these appellants is proved.
4. The FIR is at the instance of Saligram Singh (P.W.3). He stated that on 2.3.1984 at 8 a.m., he along with Banshi Singh (the deceased), Bateshwar Singh, Praveen Singh and Ranjit Singh were going for work.
When they reached near Bugo (forest area), all of sudden, Sahdeo Yadav, armed with bomb and bhujali, Lalu Yadav (Appellant 1) armed with pistol, Rewa Sao (appellant No. 9), armed with bomb, Dhaturi Yadav, armed with bomb, Rupan Sao (appellant No. 6) armed with sword, Shankar Sao (appellant No. 8) armed with lathi, Bhikho Sao (Appellant No. 3) with axe, Jodhi Sao (appellant No. 10) armed with axe, Kishun Hajam (appellant No. 4) with bomb, Ghatrui Yadav (appellant No.2) with axe, Prasadi Sao v(appellnat No. 5) armed axe and Dineshwar Singh armed with Gun confronted them. Shahdeo Yadav exploded a bomb on Banshi Singh and Lalu Yadav fired on him with pistol and Dinesh Singh also fired from his gun. Thereafter Banshi Singh fell down on the ground. The informant fled away from the place and took shelter behind a banyan Tree. He stated that he saw that Sahdeo, Lalu and Rupan taking away Banshi Singh (the deceased) and Sahdeo Yadav cut the neck of the deceased by his Bhujali. He stated that he along with Ranjit, Bateshwar and Praveen were the eye witness of the incident. When the accused left the place, this informant and others saw Banshi Singh was beheaded. The cause behind the aforesaid incident is that the accused persons wanted to kill them because the appellants were also accused in murder case of the informant's son and they wanted to committed the murder of the informant and other persons due to enmity.
On the basis of the aforesaid statement, the FIR being Bishnugarh P.S. Case No. 21/1994 was registered and after investigation, the police submitted chargesheet against the appellants and accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. As the appellant pleaded not guilty, charge was framed against the appellants for the offence under Sections 148, 149, 302 and 201 IPC .
5. In order to prove the charge against the accused, the prosecution had examined altogether six witnesses, who are as follows:-
P.W.1- Bateshwar Singh
P.W.2- Pravin Singh
P.W.3- Shaligram Singh (informant of this case)
P.W.4- Ranjeet Singh
P.W.5- Indra Nath Ram, and
P.W.6- Dinesh Kumar.
6. Some important documents were also exhibited in this case.
Ext.1: Signature in fardbeyan
Ext.1/1: FIR.
Ext.1/2: Signature of Officer-in-Charge in the FIR.
Ext.2: Endorsement in FIR.
Ext.3: Certified copy of S.T. No. 32/1986.
7. After completion of prosecution evidence, the statement of the appellants were recorded under Section 313 Cr.P.C.
8. The Trial Court thereafter considering the evidences had convicted the appellants for committing the offence as alleged.
9. From the FIR as well as evidence, I find that there are two main allegations in the FIR: that bombs were hurled by these appellants on Banshi Singh, fire arm was also used and the deceased was beheaded.
10. Since this is a case of homicide amounting to murder, the prosecution has to prove the said fact. The doctor, who conducted the postmortem upon the deceased, has not been examined in this case. From the record, we find that even the postmortem report has also not been exhibited nor it was produced. In absence of the postmortem report and also in absence of evidence of the doctor, who conducted the postmortem of the dead body of the deceased, merely on the basis of the statement of the witnesses, it cannot be proved that the deceased died a homicidal death.
11. There is allegation in the FIR and by the witness that bomb was hurled and there was assault by the fire arm. Since the doctor, who conducted the postmortem has not been examined nor the postmortem report has been brought on record, we hold that there is nothing to corroborate the aforesaid fact that the bomb was hurled upon the deceased. Further we find that there is no charge framed under the Explosive Substance Act.
12. It is the allegation that the deceased was beheaded with the knife. This fact has also not been substantiated by the medical evidence.
13. So far as the place of occurrence is concerned, the same has also not been proved, as the Investigating Officer of this case has not been examined. The use of fire arms and bombs has not been established, as it is the Investigating Officer, who could have narrated in favour of the prosecution and he could have proved the use of fire arm and bomb. The non-examination of the Investigating Officer is fatal for the prosecution.
14. While, I go through the statements of the appellants recorded under Section 313 Cr.P.C, I find that none of the circumstances, which surfaced during the evidence against each of the appellants has been put to them. In a most perfunctory manner, formality has been completed by the Court.
15. In view of what I found and I have noted above, I hold that the prosecution has not been able to prove homicidal death of the deceased nor could prove the prosecution story of using of bomb as well as fire arms in commission of the offence nor the place of occurrence has been proved by the prosecution. Thus I have no other alternative than to acquit the appellants from the charge. The Judgment of conviction dated 16.7.2002 and order of sentence dated 17.7.2002 passed by the learned Addl. Sessions Judge-, FTC-II, Hazaribagh in Sessions Trial No. 512 of 1993 is set aside. Accordingly, this appeal is allowed.
16. Since the appellants are on bail, they are discharged from the liabilities of their bail bonds, so are the bailors.
17. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment.
18. Pending interlocutory application, if any, is also disposed of.
