D.N. Patel, J. - (1.) This Criminal Appeal has been preferred by the appellants-accused persons, being aggrieved and feeling dissatisfied with the judgment and order of conviction and sentence dated 28th July, 2007 and 31st July, 2007 respectively, passed by learned Additional Sessions Judge, FTC, Raj Mahal, District- Sahibganj, in Sessions Case No. 213 of 2005/Sessions Trial No. 140 of 2007, whereby, these appellants have been convicted for the offence punishable under Section 302 of the Indian Penal Code to be read with Section 34 thereof and sentenced to undergo imprisonment for life, with a fine of Rs.5000/- and in case of default in making payment of fine, to further undergo simple imprisonment for a period of six months.
(2.) Case of the Prosecution: On 12.12.04 at 09:05 A.M. the informant Munna Yadav (P.W-6) gave Fardbeyan to the police that his nephew Sanjeev Yadav @ Jiva Yadav (deceased) had built a hut in village Chandipur Diyara in his own land where he used to reside and look after his animals and Kalai Plants. On 10.12.04 at 06:00 P.M. Ram Dayal Mandal, Subhash Rajak, Bechan mandal, Binod Mandal, Tapesh Mistri and Kishan Mandal of village Chandipur told the informant at Sarkanda Bazar as to why his nephew Jiva Yadav had chased away Ram Dayal Mandal while harvesting Kalai. Then informant replied that Ram Dayal was harvesting the Kalai from the land of Jiva Yadav and when Jiva Yadav saw him harvesting the Kalai, Ram Dayal escaped. On that Kishan Mandal threatened the informant that because of his nephew Jiva Yadav, there is an obstruction to them in harvesting the Kalai and now his nephew Jiva Yadav will no more remain alive. It is further stated that in presence of Sanjay Prasad Yadav of village Sarkanda, Kailash Yadav, Sudhir Yadav son of Mahara Yadav, Sudhir yadav son of Bhola Yadav and Ashok Kumar Chourasiya, threat was given to the informant, by the aforesaid persons that they shall commit murder of Jiva Yadav. On 12.12.04 Pawan Yadav, the younger nephew of the informant when went to the diyara, in the hut he saw the dead body f Jiva Yadav near the Aala with his throat cut. Pawan Yadav then went back home and gave the information to the informant and others. Thereafter informant and his villagers went there and informant made his statement before the police. The informant further claim that these six persons namely (1) Ram Dayal Mandal, (2) Kishan Mandal, (3) Subhash Rajak, (4) Bechan Mandal, (5) Binod Mandal and (6) Tapesh Mistri of village Chandipur P.S. Rajmahal, District Sahibganj have committed the murder of Jiva Yadav for protesting against the theft of Kalai crop by cutting his neck with a sharp weapon. Altogether t hirteen witnesses have been examined by the prosecution: PW-1 Shiv Shankar Yadav He is the Eye witness of the occurrence. He has proved his signature in his statement recorded U/S 164 of Cr.P.C i.e marked as Ext.1 PW-2 Kamla Yadav He is the father of deceased Sanjiv Yadav @ Jiva Yadav and is Hearsay witness. PW-3 Sudhir Yadav He is a Hearsay witness. PW-4 Haridas Mandal He is a Hearsay witness. PW-5 Sahdeo Rajak He is the Eye witness of the occurrence. PW-6 Munna Yadav He is the Informant of this case and is uncle of deceased Sanjiv Yadav @ Jiva Yadav. He is a Hearsay witness. He has proved his signature in the fardbeyan i.e marked as Ext.2 and has also proved his signature in his statement U/S 164 of Cr.p.C i.e marked as Ext.3 PW-7 Lakshmi Yadav He is a Hearsay witness. PW-8 Dhananjay Mahaldar He is a Hearsay witness. PW-9 Rajendra Sarkar He is a Hearsay witness. PW-10 Shambhu Nath Singh (I.O) He is the Investigating officer of this case. He has proved the fardbeyan and formal FIR i.e marked as Ext.2/A and 4 respectively. He has proved the carbon copy of Inquest report i.e marked as Ext.5 PW-11 Dr. Dhirendra Kumar He is the Doctor who has conducted the Post-mortem of the dead body of Sanjiv Yadav @ Jiva Yadav and has proved the post-mortem report i.e marked as Ext.6 PW-12 Sri Vinod Chandra Pandey He was posted at Rajmahal as Judicial Magistrate 1st Class. He has proved the statement of Munna Yadav, Shiv Shankar Yadav and Sahdeo Rajak recorded U/S 164 of Cr.P.C i.e marked as Ext.3/A, 1/A and 3/B respectively. PW-13 Robin Mandal He is a Hearsay witness.
(3.) Arguments canvassed by learned counsel for appellant 1, 2 & 5: • It is submitted by the learned counsel for the appellants that the prosecution has failed to prove the offence of murder, committed by these appellants, beyond reasonable doubts. • It is also submitted by the learned counsel for the appellants that there are major omissions, contradictions and improvements in the depositions of prosecution witnesses and this aspect of the matter has not been properly appreciated by the learned trial court, while convicting and sentencing these appellants, and hence, the impugned judgment and order of conviction and sentence, passed by learned trial court, deserves to be quashed and set aside. • It is further submitted by the learned counsel for the appellants that the so-called eye witnesses, who are PW 1 and PW 5, are, in fact, not the eye witnesses, at all, and as such, they are untrustworthy and unreliable witnesses, in view of the fact that the date of occurrence in this case is 11th December, 2004 and their statements under Section 161 Cr.P.C. have been recorded on 25th December, 2004. These so-called eye witnesses have never raised alarm, never gone to the injured/deceased, never informed anyone about the occurrence and only on 25th December, 2004 gave their statements under Section 161 Cr.P.C. before the police and on 7th March, 2005 i.e. after more than 85 days before the Magistrate under Section 164 Cr.P.C. • It is further submitted by the learned counsel for the appellants that over and above, PW 1 in his statement under Section 164 Cr.P.C., has stated that Hibaran Yadav has given a blow whereas PW 5 in his statement under Section 164 Cr.P.C., has stated that Nitai Yadav has given a blow to the deceased and there is only one injury upon the body of the deceased, as per the medical evidence, given by PW 11- Dr. Dhirendra Kumar. Thus, the prosecution is not sure that by whose blow the murder has taken place. • It is also submitted by the learned counsel for the appellants that looking to the evidence, given by the Investigating Officer- PW 10, especially paragraph nos. 31 and 33 thereof, it is clear that both PW 1 as well as PW 5 have never ran away rather they were available in the village and despite this fact, they have given their statements before the police under Section 161 Cr.P.C. after approximately 13/14 days and before the Magistrate under Section 164 Cr.P.C. after more than 85 days and hence, they are untrustworthy and unreliable witnesses. This aspect of the matter has not been properly appreciated by the learned trial court, while convicting and sentencing these appellants. • It is also submitted by the learned counsel for the appellants that as per the medical evidence, given by PW 11-Dr. Dhirendra Kumar, there is only one injury on the body of the deceased and hence, no role has been played by rest of the accused persons. • It is also submitted by the learned counsel for the appellants that looking to the statement of the informant- PW 6, recorded before the Judicial Magistrate, 1st Class, under Section 164 Cr.P.C., it appears that PW 1 informed PW 6 about the occurrence after 2 to 4 days. Thus, PW 1 was very much available in the village and had never gone in a village of West Bengal. It is further submitted that if PW 1 can disclose about the incident to PW 6 after 2 to 4 days of the occurrence, then why he has not given his statement before the police within the said period. • It is further submitted by the learned counsel for the appellants that if PW 1 has given the names of the accused persons within 2 to 4 days before PW 6, then also why PW 6 has not given these names to the Investigating Officer immediately. Thus, it appears that PW 1 is not a reliable witness. These aspects of the matter have also not been properly appreciated by the learned trial court, while convicting and sentencing these appellants, and hence, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside. • Placing reliance upon the judgments, rendered by Hon'ble Supreme Court, as reported in 1976 AIR(SC) 2488 and 1983 2 SCC 327, learned counsel for the appellants submitted that if the so-called eye witnesses of the occurrence are giving statements at a much belated stage, they are untrustworthy and unreliable witnesses. In this case, PW 3 is the father of PW 1 and PW 1 is so-called eye witness. This PW 1 has not stated anything even to his father (PW 3) for 4 days, about the occurrence. • It is further submitted by the learned counsel for the appellants that looking to the deposition of PW 3, it appears that in paragraph no.1 of his deposition, PW 3 has stated that his son (PW 1) has told him after four days that Hibaran Yadav and Nitai Yadav have caused injuries upon the body of the deceased whereas, as per the medical evidence, given by PW 11- Dr. Dhirendra Kumar (Paragraph 3 of his deposition), there was only one injury on the body of the deceased, which has resulted into immediate death of the deceased. Thus, there are material contractions in the depositions of the prosecution witnesses and this aspect of the matter has not been properly appreciated by the learned trial court, while convicting and sentencing the appellants and hence also, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside. • Lastly, it is submitted by the learned counsel that the appellants are in judicial custody since 2007 i.e. more than ten years.;